REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO.: 81906/19
In the matter between
MOKOENA GENERAL MAINTENANCE AND PROJECTS (PTY) LTD PLAINTIFF
and
JOVAN PROJECTS (PTY) LTD DEFENDANT
JUDGMENT
Van der Schyff J
Introduction
[1] The plaintiff, Mok oena General Maintenance and Projects (Pty) Ltd (‘MGMP’)
represented by Mr. Solomon Mokoena, and the defendant, Jovan Projects (Pty) Ltd
(‘Jovan’) represented by Mr. John van der Linde, concluded an agreement on 27
March 2019. In terms of this agreement MGMP was appointed as a sub -contractor
for the Ebony Mall project. Jovan terminated the contract on or about 23 May 2019.
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
Date: 14 August 2025 E van der Schyff
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This litigation flows from the alleged breach of the contract and MGMP claims
damages of R4 350 611.00 for ‘loss of income’. During closing argument, it became
apparent that MGMP’s claim, properly defined, was for loss of profit.
Pleadings
Particulars of claim
[2] MGMP averred in its particulars of claim that the parties entered into a ‘written
contract, partly oral agreement’. A nnexure A is attached as being a copy of the
written contract.
[3] The terms of the agreement, according to MGMP, were the following:
a. MGMP would carry out brickwork labour for the erection of Ebony Mal l in
Tembisa;
b. MGMP ‘would be allocated 14 million bricks , sub-divided equally with the
other 2 sub-contractors’ (sic.);
c. Each subcontractor would be allocated 4,666,666 (four million six hundred
and sixty-six thousand six hundred and sixty-six) bricks;
d. Each brick would be at the cost of R0.95 cents;
e. MGMP would be expected to issue invoices to Jovan for services rendered
on a fortnightly basis;
f. Payment would be made into MGMP’s bank account.
[4] The contract was to run until the completion of the stipulated construction work.
Pursuant to the agreement , MGMP did part of the brickwork and sent invoices
attached to the particulars of claim to Jovan. During May 2019 , barely two months
after the contract period commenced, the agreement was orally terminated by
Jovan, who advised MGMP that their services were no longer needed.
[5] As a result of the breach of contract, MGMP suffered ‘expected damage of loss of
income’ in the amount of R4 350 611.00.
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Plea
[6] Jovan pleaded that a written agreement had been concluded between the parties.
This agreement is constituted by two documents, Annexure ‘A’ and ‘B’. The
defendant raised a special plea and requested a stay of the proceedings pursuant
to the dispute being referred to arbitration. I paused to state that the special plea
was argued at the onset of the proceedings. I indicated to counsel that I am of the
view that I can only rule on the special plea after evidence has been led.
[7] As to the merits of the claim itself, Jovan denied being indebted towards MGMP for
payment of the amount claimed or any other amount whatsoever.
[8] Jovan pleaded that it bears no knowledge of MGMP being a private company with
limited liability, duly registered and incorporated in accordance with the company
laws of the Republic of South Africa, and denied the averments made in this regard.
[9] Jovan pleaded that the material terms of the agreement between the parties were
that:
a. MGMP would perform brickwork as and when areas became available for a
subcontractor to proceed at the sole discretion of the project manager when
previous work was approved;
b. No particular quantities were agreed, but the bill of quantities only allowed for
1,240,000.00 stock bricks and 150,000 face bricks;
c. MGMP’s invoices furnished to Jovan had to correspond with the project
manager’s measured quantities and agreed rates;
d. MGMP’s service s would be rendered on an ad hoc basis as and when
required, but not for any particular fixed term.
[10] Jovan further pleaded that MGMP breached the agreement by failing to:
a. Pay the labourers employed by it after receipt of payment from Jovan;
b. Discharging its obligations timeously under circumstances where time was of
the essence;
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c. Deliver on the performance criteria and milestones as determined by the
project manager;
d. Submit source documents to Jovan in support of claims for payment as
agreed between the parties;
e. Failed to rectify its breach of the agreement despite a demand to do so.
[11] Jovan pleaded that MGMP repudiated the agreement through its actions, a
repudiation that Jovan accepted. A notice of termination was given to MGM P on or
about 23 May 2019, and the agreement was lawfully terminated. Jovan pleaded in
the alternative that MGMP made performance impossible , and further in the
alternative that performance became impossible because it had to make use of
alternative contractors to discharge the obligations owed to it by MGMP. MGMP was
paid for all the work completed by it.
Plaintiff’s replication
[12] In replication, MGMP denied that the agreement concluded between the parties
included Annexure ‘B’ attached to Jovan’s plea. MGMP reiterated that ‘the only valid
contract signed’ is marked Annexure ‘A’. Since Jovan alleged that the community
insisted on the termination of the agreement with MGMP, MGMP requested that
Jovan furnish minutes of the meeting where it was decided that MGMP’s service be
terminated, this was not done. MGMP’s agreement was with Jovan and not with the
community.
Issues in dispute
[13] When the trial commenced, MGMP’s counsel listed a number of issues in dispute.
Counsel for Jovan, however, stated that the totality of issues in dispute is set out in
the Joint Practice Note (‘JNP’). The following issues are listed in the JPN:
a. The locus standi and citation of the plaintiff;
b. The court’s jurisdiction as raised in the defendant’s special plea;
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c. The extent of the agreement as to whether the agreement is embodied in
Annexure A to the MGMP’s particulars of claim, or Annexures “A” and “B” of
Jovan’s plea;
d. Whether the terms of the agreement are those pleaded in paragraphs 5.1-5.7
of the plaintiff’s particulars of claim, or those pleaded in paragraph 13.1-13.4
of the defendant’s plea?
e. Which party breached the agreement?
f. Whether the plaintiff suffered damages as a result of any breach of contract
by the defendant?
g. If so, the quantum of the damages.
Evidence
[14] Mr. Solly Mokoena testified on behalf of MGMP. Mr. Mokoena testified that he is the
sole director of the plaintiff. His attention was directed to the termination letter, 1
wherein it was stated by Jovan that MGMP’s ‘lack of performance to speed up the
pace as well as the mismanagement of [its] staff with the wrong ratio of tradesmen
vs labour has caused [it] to underperform’, and asked to comment on it. He denied
that there was any issue with MGMP’s performance. Mr. Mokoena’s evidence is that
they (MGMP) were working well and that Mr. Van der Linde said they were doing a
good job.
[15] Mr. Mokoena’s comment on the averment in the letter that it was brought to Jovan’s
attention by the Steering Committee that MGMP has not paid the workers from the
Labour Desk2 their full wages was that Jovan was responsible for paying the workers
from the Labour Desk and would have refunded MGMP. It became apparent through
the evidence presented that the community where Ebony Mall was built required that
local labourers be used in the project. This resulted in the Labour Desk’s existence
where local labourers were sourced for some aspects of the work. MGMP employed
1 Annexure ‘B1’ attached to the plaintiff’s particulars of claim filed on Caselines 28-180.
2 The community demanded that local labour be used in the project. The Labour Desk was set up
where local labour could be sourced from.
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30 labourers. I pause to state that MGMP did not fully traverse this issue . Mr.
Mokoena testified that MGMP paid the labourers.
[16] Mr. Mokoena’s attention was then directed to the particulars of claim wherein MGMP
claimed that it created invoices and sent the invoices to Jovan for payment. The
evidence rendered in chief on this aspect is significant since Jovan denied that
MGMP submitted source documentation in support of claims for payment. MGMP’s
evidence was that it was obliged, and indeed, did send invoices to Jova n on a
fortnightly basis. He said he took invoices to ‘Frans’ or emailed them.
[17] Only three invoices were attached to the particulars of claim. Of these, only one was
dated. The first invoice is dated 31 May 2019. It contains invoice number 3836. The
invoice was for an amount of R73,268.67. No allowance is made for any Value
Added Tax (‘VAT’). The accompanying undated payment certificate is signed by Mr.
Mokoena only, and not signed on behalf of Jovan. The second invoice is undated. It
reflects invoice number 3835, and indicates an amount of R82,649.05 as the amount
due and payable. This invoice does not reflect any amount attributed to VAT. The
undated payment certificate linked to this invoice is again only signed by Mr.
Mokoena. The third invoice attached is again undated. It curiously also reflects
invoice number 3836. This invoice was for the amount of R145 620.73. Again, no
amount is attributed to VAT. No corresponding payment certificate was provided.
[18] Mr. Mokoena testified that the full amounts reflected in the invoices were never paid.
He only received partial payment, but he could not recall how much he received at
each instance. During Mr. Mokoena’s testimony, it became apparent that the invoice
reflecting the amount of R82,649.05 was drafted ‘after the fact’ to represent the full
amount MGMP received from Jovan for the duration of its involvement in the project.
amount MGMP received from Jovan for the duration of its involvement in the project.
[19] Mr. Mokoena’s attention was drawn to a letter dated 21 May 2019 attached to the
particulars of claim. It is a letter on the letterhead of the Department of Justice and
Constitutional Development, Magistrate’s Office, Johannesburg. Mr. Mokoena
testified th at he approached the Department because Jovan did not pay him
according to the agreement between the parties. He was, however, informed that
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the Department did not have the jurisdiction to deal with such matters and advised
to obtain the services of a lawyer.
[20] Mr. Mokoena testified that Annexure A to the particulars of claim constituted the
written agreement between the parties. He denied that Annexure B to the
defendant’s plea formed part of the agreement between the parties. He never
received any written notice from Jovan prior to the termination of the agreement, nor
was any notice in terms of the dispute resolution mechanism contained in clause 30
of Annexure B ever sent to him.
[21] Mr. Mokoena then testified about his involvement in the building project. He was
contracted to do brickwork and was one of three subcontractors contracted for this
work. The total brickwork comprised 14 million bricks, which would have been
equally divided between the three subcontractors. Each subcontractor would be
allocated 4,666,666 (four million six hundred and sixty thousand six hundred and
sixty bricks. He expected MGMP to be paid an amount of R 4,433,332 (four million
four hundred and thirty -three thousand three hundred and thirty -two rand) as he
ought to have been paid 95c (ninety -five cents) per brick. The duration of their
subcontract with Jovan was said to be ‘until we finish the job’. He understood this to
reflect that the subcontract will exist until the whole project is completed. I pause to
state that it was only during cross-examination that Mr. Mokoena identified Mr. Van
der Linde as the person who told him that 14 million bricks would be equally divided
between the three subcontractors.
[22] When cross-examined, Mr. Mokoena denied any knowledge of the involvement of
the Steering Committee in the project. He testified that he had nothing to do with the
community as he concluded a contract with Jovan. He was aware that the
community required the involvement of local labour in the project, but testifi ed that
Jovan was responsible for paying these labourers. MGMP got involved in the project
Jovan was responsible for paying these labourers. MGMP got involved in the project
after they submitted their profile to Jovan. He was, however, aware of the volatile
and hostile atmosphere, which required the intervention of the South African Poli ce
Services and the Defence Force.
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[23] Mr. Mokoena confirmed that the foundation of his claim was th e amount of bricks
allocated to each subcontractor. His attention was drawn to the fact that Annexure
A does not contain any reference to any amount of bricks. He confirmed that the
other two subcontractors were already building when MGMP was employed as the
third subcontractor. His attention was drawn to the clause in Annexure A that ‘[t]he
subcontractor acknowledges that “time is of the essence” in this contract.’
[24] It was put to him that Mr. Van der Linde would deny that he ever said that the project
would comprise 14 million bricks, which would be subdiv ided equally between the
three subcontractors. It was put to Mr. Mokoena that such an arrangement would
not make any business sense, as some builders were more efficient than others and
would build faster. To stop them progressing because the limit of an amount of bricks
was reached, while another builder was slower, did not add up. Mr. Mokoena agreed
that since builders were paid per brick, the faster they built, the more they would be
paid.
[25] Mr. Mokoena denied not paying his workers. His attention was th en referred to a
letter dated 13 May 2019, which he signed on behalf of MGMP and Mr. van der Linde
on behalf of Jovan. In this letter , the parties confirmed that MGMP would borrow
R19,000 from Jovan to reimburse MGMP’s staff who worked at Ebony Mall. The
letter also reflects that Jovan has overpaid MGMP R14 353.00. Jovan was willing to
re-measure all the work done by MGMP. The total amount of R33,353.00 owed by
MGMP to Jovan would be deducted in smaller increments from MGMP’s payments
as soon as they commence with new brickwork. Jovan informed MGMP that it would
assist MGMP in managing its workforce. However, MGMP was advised to lay off its
workers and employ a smaller team as soon as ‘a new area’ was available.
[26] Mr. Mokoena initially denied that MGMP borrowed any money from Jovan. He did
[26] Mr. Mokoena initially denied that MGMP borrowed any money from Jovan. He did
acknowledge that he signed the letter. He said that Mr. van der Linde informed him
that the community is threatening him , and he had to take local labourers from the
labour desk. Mr. Mokoena was of the view that he was not responsible for
remunerating the workers added to his workforce. The fact that he signed this letter,
however, was not disputed. He then testified that he decided he would come back
and pay Jovan back when he started working again. It was put to Mr. Mokoena and
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confirmed by Mr. Van der Linde when he testified that Jovan did not pay the amount
of R19,000 to MGMP. The amount was paid directly to the labourers on MGMP’s
payroll by Jovan after MGMP provided a list of names with the individuals’ ban king
details.
[27] When it was put to him that MGMP ’s work pace was too slow because of the ratio
between tradesmen and labourers, Mr. Mokoena denied it. Mr. Mokoena took issue
with the fact that Jovan never provided MGMP with detailed drawings and a bill of
quantities. These documents were, however, later discovered after the litigation
commenced.
[28] While being cross-examined, Mr. Mokoena said that although the written agreement
contained in Annexure A provides for the use of stock bricks and face bricks at
different tariffs, Jovan only provided face bricks. The tariff for stock bricks was
R840.00 / 1000 bricks, and for face bricks , R950.00 / 1000 bricks. It was put to Mr.
Mokoena that he attempted to enlarge his claim by claiming that only face bricks
were utilised in the project.
[29] It was put to Mr. Mokoena that the community was, among others, angered by the
fact that MGMP did not pay its workers. As a result, Jovan had to intervene and pay
the workers directly. The community, through the Steering Committee , demanded
that MGMP’s involvement in the project be terminated. Because he had to finish the
project, and in an attempt to calm the volatile atmosphere and address the
complaints that MGMP did not pay its workers, Jovan decided to terminate the
agreement with MGMP.
[30] It was put to Mr. Mokoena that Mr. Van der Linde would testify that he did not use
MGMP’s invoices when he calculated payment owed to MGMP. He used the
measurements provided by his own employees. Mr. Mokoena could not explain why
the payment ce rtificates did not contain Jovan’s employee’s signatures. He
conceded later that Mr. Franz Bulow would ‘check’ MGMP’s measurements. Mr.
Mokoena could not explain why two of the three invoices were not dated.
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[31] Mr. Mokoena’s evidence regarding the payment o f his workers by Jovan was
inconsistent. He first denied that Jovan lent him any money, then conceded that he
signed the letter confirming the transaction and planned to pay back the money when
work was allocated to him again. Later, he claimed again that he paid the workers
himself. Later, he again acknowledged that Jovan paid them , but said he did not
know the reason why Jovan paid them.
[32] After having heard Mr. Mokoena’s evidence, this court was none the wiser as to how
it came about that a contract was concluded between MGMP and Jovan. Except for
a remark in passing that Mr. Mokoena deposited his profile in a box at the Labour
Desk, no evidence was tendered as to whom he had negot iations with, or what the
negotiations preceding the conclusion of the contract entailed.
[33] After Mr. Mokoena’s evidence, the plaintiff’s case was closed. The defendant called
Mr. van der Linde to testify. Mr. Van der Linde testified that the agreement captured
in Annexure A was sent to MGMP for signing. He could not recall if it was emailed
or delivered by hand. He explained that MGMP was awarded a contract after
submitting a profile in a box at the Labour Desk. The Labour Desk was a community
structure as the project commenced in a hostile community.
[34] The agreement provided to and signed by MGMP consisted only of Annexure A.
Annexure B to the defendant’s plea is referred to in Annexure A. The document ,
Annexure B, was not sent to MGMP together with Annexure A.
[35] Jovan contracted with three subcontractors for the brickwork. The contracts did not
commence at the same time. MGMP was the third subcontractor with whom a
contract was concluded. At this point the other contractors have already commenced
with brickwork. Work would be allocated to the contractors depending on the
workload. Both face bricks and stock bricks were used in the project. Mr. van der
workload. Both face bricks and stock bricks were used in the project. Mr. van der
Linde emphatically denied telling Mr. Mokoena that 14 million bricks would be
divided between the three subcontractors. Some builders worked faster, the work
areas were of different sizes, and contractors could not work across each other’s
allocated working areas. There were times when the subcontractors laid down work
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as they waited for areas to be built to become available. The subcontractors were
not on site permanently.
[36] He testified that around 1.3 million bricks were used on the project , and stated that
no building in Pretoria would have required 14 million bricks. He confirmed that both
stock bricks and face bricks were used when Ebony Mall was erected. MGMP was
only one and a half months on site. Mr. Van der Linde testified that MGMP’s pace
was slow in comparison with the other subcontractors. He ascrib ed it to the ratio
between tradesmen (bricklayers) and labourers. This is also the reason why MGMP
could not pay its workers.
[37] Mr. Van der Linde testified that his site agent was Mr. Franz Bulow. Mr. Bulow would
provide him with the measurement of the work done, and he would calculate the
payment to be made to the respective subcontractors based on Mr. Bulow’s
measurement. Invoices could not be prepared in advance. Where disputes arose,
Mr. Bulow would re-measure the work together with the relevant subcontr actor. He
denied any knowledge of disputes between MGMP and Jovan regarding payments
made to MGMP. According to his calculations captured in a spreadsheet that was
discovered, Jovan paid over R92,174.19 to MGMP.3
[38] Mr. Van der Linde testified that the Steer ing Committee demanded that MGMP’s
involvement in the project be terminated as MGMP did not pay its labourers. He
eventually acceded to this demand as part of Jovan’s efforts to defuse the hostile
atmosphere and to prevent further delays, although he attempted to provide MGMP
with advice. By terminating MGMP’s contract , Jovan suffered a financial loss as it
was not able to recover the payments made to the labourers or the amount by which
MGMP was overpaid.
[39] When cross-examined, Mr. Van der Linde denied the existence of any disagreement
between MGMP and Jovan. He said the issue that arose was a compliance issue.
He reiterated that Jovan only terminated the contract with MGMP after the Steering
He reiterated that Jovan only terminated the contract with MGMP after the Steering
Committee demanded it. Whilst counsel for MGMP initially took issu e with the fact
3 Caselines 28-178.
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that MGMP was not provided with a resolution by or the minutes from the meeting
with the Steering Committee regarding the termination of MGMP’s involvement in
the project, he later put it to Mr. Van der Linde that the reason why Jovan terminated
the agreement with MGMP was the pressure put on it by the community. Mr. Van
der Linde testified that Jovan usually goes out of its way to assist the subcontractors
it concludes contracts with, but here the community demande d the termination of
the subcontract.
[40] When questioned as to why Jovan did not provide the plans with dimensions and bill
of quantities to MGMP when requested to do so, Mr. Van der Linde explained that
drawings and plans were available at the site office, and it was accessible. As for
the bill of quantities, it contained privileged information that could not be distributed
before the project was finalised.
[41] Mr. Van der Linde explained that payments were made to subcontractors even if
invoices were not provided. This was done because payment was calculated based
on the measurements taken by Jovan’s site inspectors. Since MGMP was not a VAT
vendor, no i nvoices were required to make payments. Even when acceptable
invoices were not rendered, payment was made bas ed on Jovan’s measurements.
Counsel put it to Mr. Van der Linde that MGMP was a VAT vendor. However, I pause
to point out that evidence was not presented substantiating this statement, and the
invoices provided by MGMP do not reflect any VAT liability.
[42] Mr. van der Linde testified that Jovan had no labourers. The labour was acquired
through subcontracts. He denied any knowledge of invoices sent by MGMP and said
the invoices attached to the particulars of claim were not relevant to the work done.
Discussion
[43] Much was made by MGMP’s counsel about Mr. Van der Linde’s credibility as a
witness. I disagree with the submission that Mr. Van der Linde was not a credible
witness. He was consistent in providing Jovan’s version before the court.
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[44] Mr. Mokoena’s evidence was somewhat erratic and disjointed. Several lacunae exist
in his evidence . Most importantly, he failed to lead any evidence as to how and
where the parties agreed that MGMP would be allocated a third of the alleged 14
million bricks that would apparently be utilized in the project. Mr. Mokoena did not
explain whether this agreement was reached before the written contract was
concluded, and if so, why it was not incorporated as a term in the written agreement.
He did not explain how M GMP came to tender for the project by submitting his
profile. The three invoices attached to the particulars of claim served no purpose at
all and did not s ubstantiate MGMP’s version that contract -compliant invoices were
regularly submitted on a fortnightl y basis. Mr. Mokoena contradicted himself as far
as his testimony regarding the R19,000 paid by Jovan to MGMP’s workforce went.
He also failed to provide clear and coherent evidence regarding the labourers from
the Labour Desk that MGMP apparently was requ ired to accommodate after the
agreement was concluded between Jovan and MGMP. This aspect was also not
raised in the pleadings.
[45] The plaintiff faces several obstacles in this litigation. The first can be regarded as
highly technical, but in itself is dispositive of the claim. It is averred in the particulars
of claim that the plaintiff is a private company with limited liability, duly registered
and incorporated in accordance with the company laws of the Republic of South
Africa. The defendant pleaded that it bears no knowledge of this allegation and
accordingly denied it. In the joint practice note, respectively signed on 11 and 15
July 2025, the plaintiff’s locus standi is listed as an issue in dispute. The plaintiff led
no evidence to substantiate the averment that it is indeed at this point a private
company with limited liability registered and incorporated in accordance with the
laws of the Republic of South Africa.
Locus standi
laws of the Republic of South Africa.
Locus standi
[46] For the plaintiff to have locus standi, it was required to prove that it is indeed a juristic
entity. Since this aspect was not proven, it cannot be said that the plaintiff has the
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required standing to institute legal proceedings in its own name. It suffices to quote
from Van Heerden v du Plessis:4
‘Daar kan geen eis wees sonder 'n eiser nie; 'n dokument wat voorgee om
'n dagvaarding te wees maar wat van 'n verweerder verlang dat hy aan die
eis van 'n nie -bestaande persoon moet voldoen is 'n nulliteit sover dit die
daarstelling van 'n eis betref. Die eiser is hy wat die uitdaging tot litigasie
uitstuur (Voet 5.1.9) en moet 'n persona wees.'
(‘There can be no claim without a claimant; a document purporting to be a
summons but requiring a defendant to comply with the demand of a non -
existent person is a nullity so far as the establishment of a claim is
concerned. The claimant is he who issues the challenge to litigation (Voet
5.1.9) and must be a persona.’) (My translation)
Onus of proof
[47] The second obstacle faced by the plaintiff is the onus of proof borne by the plaintiff.
The plaintiff bears the onus of proving the agreement and the terms that it alleges.5
The onus of proving the terms of the agreement may involve the proof of a negative,
for example, that the parties did not agree on an additional term alleged by the
defendant.
[48] As far as the evidence regarding the terms of the contract is concerned, the court is
faced with two mutually destructive versions. The plaintiff , MGMP, could on ly
discharge this onus if it succeeded in satisfying the court on a preponderance of
probabilities that its version is true and accurate and therefore acceptable and that
Jovan’s version is false, or mistaken and falls to be rejected.6
[49] If this court weighs up MGMP’s testimony against the general probabilities, MGMP’s
version falls short. I agree with the defendant that it defies logic and business sense
4 1969 (3) SA 298 (O) at 304A.
5 Kriegler v Minitzer and Another 1949 (4) SA 821 (A) at 826.
6 National Employer’s General Insurance v Jagers 1984 (4) SA 437 (E) at 440D-G.
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that a principal contractor would agree with three subcontractors, all appointed at
different periods, contracted to do brickwork on a project where different-sized areas
must be built, where time is of the essence, and where the subcontractors were
expected to stand down when a building area was not yet prepared, that the
subcontractors would each be allotted the exact same number of bricks to build with
according to which their remuneration would be calculated. In addition, Mr. Van der
Linde’s evidence that there is no building in Pretoria where 14 million bricks were
used, and that an estimate of 1.3 million bricks were used in the Ebony Mall project,
was not challenged.
[50] Even if I accept, in MGMP’s favour, that the probabilities are evenly balanced, I am
not satisfied or convinced that the defendant’s version is so improbable that it is
inherently false.
Damages
[51] The final nail in the plaintiff’s coffin, is that it did not prove its damages. Even if the
court accept s the plaintiff’s evidence regarding the terms of the agreement, the
plaintiff’s claim is a claim for loss of profit. The ‘income’ that would or could have
been generated through the agreement would have been the basis for the
calculation of damages if all the work was rendered as agreed and the plaintiff was
not compensated accordingly. This is not the case in the current sce nario. Here,
MGMP claims the benefit it expected to receive had the contract been fulfilled as
agreed. MGMP’s claim is for loss of profit. MGMP, however, did not lead one shred
of evidence regarding the expenses it would have incurred in the course of building,
which have to be deducted from the projected income to calculate the projected
profit. It is just not possible to calculate MGMP’s loss , even on the terms of the
agreement as proposed by MGMP.
Remaining issue: Costs relating to the special plea
[52] Jovan raised a special plea at the commencement of the trial. It sought a stay of
[52] Jovan raised a special plea at the commencement of the trial. It sought a stay of
proceedings pending the arbitration of the dispute. Jovan contended that the
document signed by both parties, Annexure A, incorporated by reference the ‘The
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Joint Building Co ntracts Committee – NPC Nominated / Selected Subcontract
Agreement Edition 6.1 – March 2014’ (JBCC contract) to the agreement concluded
between the parties. MGMP denied any knowledge of the JBCC contract. The JBCC
contract contains a clause specifically dealing with dispute resolution. It provides for
a dispute to be referred to adjudication and eventually arbitration. I indicated that
evidence needed to be presented before I finally dealt with the special plea, and the
matter proceeded.
[53] The specific word ing in the signed agreement on which the defendant based its
special plea reads as follows:
‘Please execute the following DOMESTIC Subcontract as per JBCC
Nominated / Selected Subcontract Agreement Edition 6.1 - March 2014 at
the NEW SHOPPING CENTRE, EBONY MALL, TEMBISA in accordance
with the terms and directions set out below.’
It is later stated in the agreement:
‘Furthermore, this sub -contract shall be deemed to incorporate mutatis
mutandis all the terms and conditions of the Principal Building agreeme nt
entered into between the Client and JOVAN PROJECTS and that the
subcontractor hereby waives and renounces and abandons any terms and
conditions set out in this tender which are in conflict with the Principal
Building Agreement and the Specific Conditions of Subcontract.’
It is important to note that the JBCC Nominated / selected Subcontract Agreement
Edition 6.1 – March 2014 (the JBCC contract) is not included in the documents
pertinently stated to have been incorporated into the agreement concluded between
the parties.
The agreement does, however, contain a section under the heading ‘Annexure “A”
Amendments to the JBCC Edition 6.1 – March 2014 Sub-Contract Document (Pages
2 -4)’
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[54] During closing argument, counsel for Jovan submitted that there is no doubt that
MGMP had no subjective knowledge of the JBCC contract, but was nevertheless
bound to the terms contained therein since it was incorporated by reference.
Counsel also submitted that since this court heard evidence on th e totality of the
matter, it would have no value to refer the matter to arbitration at this stage, and the
issue only remained relevant for purposes of costs.
[55] That Jovan was aware of its corporate social responsibility is evident from Mr. Van
der Linde’s evidence. Jovan went out of its way to accommodate subcontractors.
Jovan gave advice, lent money to pay workers, sometimes provided wheelbarrows
and equipment when a project commenced, provided the scaffolding, and even
marked the area that had to be built up with chalk. When subcontractors did not
provide contract -compliant invoices Jovan still effected payment based on the
measurements of its site officials. When it came to the agreement, however, Jovan
expected the subcontractors sourced from the communi ty to be well -versed in
intricate legal principles. Jovan did not attach the JBCC contract to the document
that had to be, and was, signed by both parties. It did not invite the subcontractor to
request a copy of the JBCC contract or inform the subcontractor where the JBCC
contract could be accessed. In fact, Jovan did not attach a complete copy of the
JBCC agreement to its plea, and counsel informed the court that Jovan’s legal team
had to purchase a copy before it could upload the last page to the electronic file after
I alerted them to the existence of the last page. This raises the question of whether
any terms contained in the JBCC contract could actually have been incorporated to
the parties' agreement through reference.
[56] The terms of a standard-form agreement may be incorporated into a contract by
reference. The contract must expressly and unambiguously indicate that the external
reference. The contract must expressly and unambiguously indicate that the external
document is to be incorporated. Vague allusions are insufficient. The phrase ‘Please
execute the following DOMESTIC Subcontract as per JBCC Nominated / Selected
Subcontract Agreement Edition 6.1- March 2014’ on its own, does not, in my mind,
indicate a clear intention to incorporate the terms of the JBCC contract to the
agreement. The latter portion of the agree ment, which specifically includes
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amendments to the JBCC contract , may, on face value, be said to support the
proposition that the JBCC contract was meant to be incorporated by the drafter of
the signed agreement. This is, however, not the end of the matter.
[57] The totality of evidence does not support a finding that MGMP had actual knowledge
of the terms of the JBCC contract or had been given access to the document and
had been provided with an opportunity to read and understand the document before
or at the time of contracting. 7 In addition, t he signed agreement specifically
incorporates certain other documents and agreements to the agreement concluded
between the parties. The JBCC contract is not listed among those.
[58] Also relevant is the fact that Jovan, who pleaded that Annexure B formed part of the
agreement and the matter should, based on the terms of Annexure B, be referred to
arbitration, failed to follow the procedure set out in Annexure B when it terminated
the agreement because of the commun ity’s pressure. Jovan, however, require d
MGMP, who it accepts had no subjective knowledge of the content of Annexure B,
to be bound by the terms of the JBCC contract. In the prevailing circumstances, the
maxim caveat subscriptor does not avail the defendant.
[59] In these circumstances, it is fair that the defendant, JOVAN, carries the costs in
relation to court time expended in arguing the special plea.
Conclusion
[60] The cumulative effect of MGMP not succeeding in proving that it has the required
locus standi, that the terms of the agreement are what it alleged them to be, or its
loss of profit, renders the issue of whether Jovan indeed breached the contract when
it communicated to MGMP that the community has requested Jovan not to let MGMP
back on site and that Jovan can therefore not make use of MGMP’s services any
more, irrelevant.
more, irrelevant.
7 See Spindrifter (Pty) Ltd v Lester Donovan (Pty) Ltd 1986 (1) SA 303 (A) and Mercurius Motors
v Lopez 2008 (3) 572 (A).
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[61] As a result, the plaintiffs claim stands to be dismissed.
[62] There is no reason to deviate from the principle that costs, w ith the exclusion of costs
incurred in relation to the court time expended for arguing the special plea, follow
success. The defendant did not seek a punitive costs order against the plaintiff.
Hav ing regard to the complexity of the matter, it is just that costs be aw arded on
scale B .
ORDER
In the result, the following order is granted:
1. The plaintiff's claim is dismissed.
2. Subject to 3 below, the plaintiff is to pay the defendant's costs, which costs
include the costs of counsel, on Scale B.
3. The defendant is liable for the costs incurred in relation to court time
expended on arguing the special plea on scale B.
Schyff
Judge of the H igh Court
D elivered: This judgment is handed down electronically by uploading it to the electronic file of
this matter on Caselines. In the event that there is a discrepancy between the date the judgmen t
is signed and the date it is uploaded to Case lines, the date the judgment is uploaded to
Case lines is deemed to be the date that the judgment is handed dow n.
For the plaintiff:
Instructed by:
For the defendant:
Instructed by:
Date of the hearing:
Date of judgment:
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Adv. T Mahafha
Mokhabuk i Attorneys
Adv. JH Wildenboer
Du Randt Du Toit Pelser Inc.
4 -7 August 2025
14 August 2025