REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWAN E)
(1)
(2)
(3)
In the matter between:
BATELINE INVES TM E NT (PTY) LTD
KOEPHU BUSI N ESS E N TERPR ISES
And
NEDTEX CC RESPONDENT
CASE NO :HCA 22/2024
1 ST APPELLANT
2ND APPELLANT
RESPONDENT
CORAM: NADE _ ODENDAA L J and DIAMOND A J
JUDGMENT
DIAMOND A J:
[1] Approximately the end of 2019/beginning of 2020, the Polokwane
Municipality appointed the First and the Second Appellants to
execute certain construction and building works at a project called
The Bloodriver and Seshego Wellfields (Polokwane
Groundwater)(the "Main Project").
[2] The First and Second Appellants formed a joint venture, and I w ill
refer to this joint venture simply as Bateline.
[3] Bateline appointed the Respondent as a subcontractor to perform
certain work that was necessary for the construction of the Main
project. I will refer to the Respondent as Nedtex.
[4] Nedtex issued summons against Bateline for the payment of the
balance outstanding, in which it alleges Bateline still owed to
Nedtex a balance of the contract amoun t, after Nedtex had fully
performed in terms of the contract between Bateline and Nedtex.
[5] The Magistrate's Court of Polokwane, held at Polokwane, gave
judgment in favour of Nedtex on the 18th of June 2024.
[6] It is against this judgment that the Appellant Bateline appealed,
and the appeal came before us on the 22nd of August 2025.
[7] It is apposite at this stage to refer to the pivotal clause in the
Particulars of Claim on which the Plaintiff relied:
Page -3
"5. 1 One(sic) or about 15 June 2020 at or near Polokwane,
Limpopo, the plaintiff represented by Mrs. Rajaina M asangu
was appointed by the First Defendant, w hich at material
times was represented by Mr. M P Madisha, as a
subcontractor to render certain services. The appointment
letter is attached here to marked "NED1A ".
5. 2 The relevant terms of the appointment were to render and/or
perform certain earthworks/construction work in terms of an
agreed bill of quantities (BOQ) services which included, but
were not limited to:
1. Site clearance
2. Water mains
3. Pipe trenching"
[8] It is therefore necessary to take notice, at this stage, of the content
of Annexure "NEDW1A". Annexure "NED1A", is the appointment
letter which Bateline issued to Nedtex. It stipulates as follows:
"You are hereby appointed as a subcontractor for the amount of
R841 267. 55, including 15% VAT. For the above-mentioned
project, based on the priced Bill of Quantities you submitted and
agreed to upon discussion at the Letsokoane site offices of
Bateline Investments (Pty) Ltd. The following rules and regulations
will apply:
1 ....... .
2 ...... .
3 There will be one claim of payment per month, before the 18th of
each month. You will be paid monthly after the measurement of
your comp leted work."
[9] A nnexure "NEDW1 " is attached to the particulars of claim and is
the full Bills of Quantity referred to in the appointment letter.
Page -4
[1 0] It is common cause between the parties that Nedtex
completed the work.
[11] It is also common cause between the parties that the Nedtex
rendered three payment certificates to Bateline. There was
partial payment of these payment certificates in the amount of
at least R701 911.14. Nedtex now claims that the balance
outstanding to it is an amount of R 210 800.95.
[12] Bateline conceded that the work was finished but relies on
clause number 3 referred to in paragraph (7) above, viz, that
payment will only be made after measurements of the work.
[13] The engineer who testified on behalf of Bateline testified that
Nedtex never submitted certified measurements to Bateline,
with the result that Bateline cannot effect payment to Nedtex.
[14] To this argument of Bateline, the Honourable Magistrate
responded as follows:
"[18] First, it is overly technical and ignores the context. It is
trite that ""A court must examine all the facts in order to
determine w hat the parties intended, and it is due that whether
or not the words of the contract are ambiguous or lack clarity.
Words without context mean nothing.""
[17] Second, first defendant furnished plaintiff with a
completion certificate. On the evidence of First Defendant's
own witness, the completion certificate is a clear indicator that
the works were duly comp leted to the first defendant's
satisfaction. Any argument to the contrary would not sense.
Page - 5
For instance, w hy would the completion certificate be issued if
not to certify that the job has been satisfactorily completed?"1
[15] On the basis of the above reasoning, the Magistrate gave
judgement in favour of N edtex.
[16] In m y view, the Honorable Magistrate erred in several
respects.
[17] It is undoubtedly true that context gives meaning to
communication. In fact, if a statement is stripped of any
context, it wou ld be extremely difficult to assign any meaning
to such a statement. This conclusion is based as much on
logic as it is on legal precedent.
[18] The Hono rable Mag istrate, however, in my view, failed to
consider the context of this litigation.
[19] It is common cause between the parties that the contract
between Ba teline and Nedtex was concluded w thin the
context of South African construction law .
[20] The reference in paragraph 3 referred to in paragra h (7]. viz
that payment shall only be made after the measur ment of
completed work does carry significant meaning
context of construction law.
' The honorablc mag istrate relics on the statem ent in paragraph 18 on the judgm cnt 0 1 art is v
Ma phil (20229/20 14) 120 151 %/\SC/\ 111 (3 Scptcmh cr2015)
Page -6
[21] The fact that there is a Bill of Quan tities that regulated the
determination of the contract price is further evidence that the
parties intended to include some kind of a measurement
contract.
[22] In construction law and practice, a contract can be concluded
on the basis of a lump sum on one end, or on the basis of a
re-measurement contract price, or on the basis of an ad -
measurement contract price determination.
[23] The question of a measuremen t contract as opposed to a lump
sum contract can become very technical and carries very
specific meaning in construction contracts and law. The
definition and the content of these agreements are normally
driven by standard form contracts prescribed by built industry
institutions, such as the Institution of Civil Engineers.
[24] A full discussion of the various types of contracts is beyond
the scope of this judgment. For a discussion on this topic, see
Du Plessis, H. & Oosthuizen, Construction project
management through building contracts, a South African
perspective2.
[25] In the event of a measurement contract, the initial contract
documentation is based on a certain approximation of the
1 /\ctu Structilia. Vo l. 25. No . I (2018). pp. 155-186.
Page - 7
quantity of work that must be done. A contractor contracts by
giving a rate, per fixed quantity, for the various works.
However , it is explicitly agreed upon between the contractor
and the construction owner that should the volume of work
deviate from what was approximated in the contract
documentation, the contract price will be adjusted to reflect the
true measurements of the work indeed performed.
[26] In a measurement contract, the price mentioned on the
contract documentation, functions as a framework for the rates
application, the rate having been agreed upon in the Bills of
Quantities. It does not constitute the final contract price.
[27] That the parties indeed intended to conclude a measurement
contract is, in my view, clear from the record. Before the
commencement of the contract and in the appointment letter,
Bateline explicitly stipulated that Nedtex would undertake to
do the work on the basis of the measurement of works.
[28] Apart from this, it is crystal clear from the record that when
Nedtex started to insist on payment , the engineer in the main
contract was requested to mediate between Nedtex and
Bateline.
[29] The evidence clearly establishes that a meeting took place
between the Engineer, Nedtex, and Bateline. During this
meeting, Nedtex was requested to submit their final
Page - 8
measurements for certification by the Engineer. Although
Nedtex agreed to do so, they failed to comply; by the
commencement of the trial in the Magistrates' Court, the
measurements had still not been submitted by Nedtex.
[30] The fact that Nedtex did not protest at all at this meeting to
submit the measurements for final certification is a clear
indication that Nedtex realized that this contract was a
measurement contract, and that final measurements needed
to be certified by the engineer prior to payment.
[31] Bateline's defense that Nedtex must submit measurements is
not a technicality, it's the fundamental payment mechanism of
a measurement contract.
[32] In my view, the Magistrate erred with respect in a second
respect as well. Within the context of construction law, there is
a fundamental difference between an interim payment
certificate and a final payment certificate.
[33] There is a wealth of authority3 that interim payment certificates
are provisional and can be (and almost always are) adjusted
with a final payment certificate. Even if an interim payment
certificate is not disputed at the time of the payment thereof,
' lrrn.:d1 lnstrurnents v T ransnet Limited 1/a South /\ li'ican Port Operations (Case No . I 035/20 I 8)
Z/\SCA I 13: Rand con (Natal) ( Pty) Ltd , Florida 'I'\\ in Estates (Pt)) Ltd 1973 ( 4) S/\ I 81 ( D):
.looh .loob lnvestrncnls (Ply) Ltd v Stocks Mavund la 1/.ek Joint Ven ture 2009 (5) SA I (SC/\)
Page -9
the only payment certificate that is final and determinative of
the contract price between the parties is the final payment
certificate.
[34] Most relevant for this case, the Appellate Division ruled in
Thoma s Co nstruction (Pty) Ltd (in liquidation) v Grafton
Furniture Manufacturers (Pty) Ltd4 ruled that interim payment
certificates merely constitute advanced payments against
works that still had to be executed and comp leted and do not
necessarily reflect wha t wo rk had been completed. As the
nature of an interim certificate is provisional or interim and may
be subject to change, the amounts reflected therein are not
necessarily payment certified for work actually done but rather
advances on payments on account of the contract.
[35] Very little inference can consequently be drawn from the fact
that interim payments had been rendered and some of the
interem interim paym ents were paid by Bateline.
{36] Furthermore, in paragraph 6 of the Pa rticulars of Claim, the
Nedtex alleges the following:
"On or about August 2020, the plaintiff submitted a payment
claim in the amount of R 914 116. 60 relating to the services
rendered, as described in paragraph 5 above. On or about the
first and second defendants made payment in the amount of
R 701 911.14 (seven hundred and one thousand and nine
hundred and eleven rand and fourteen cents) to the plaintiff,
thus leaving an amount of R 210 800.95 (two hundred and ten
thousand eight hundred and ninety-five cents).
4 1988 (2) SA 546 (A).
Page - I 0
[37] Had the appointment letter been the basis of the calculation,
the Nedtex wo uld have been entitled to the following: R
841 267.55 (amount in the appointment letter) plus 15% VAT
that is R 126 190.00 in other words a total amount of R
967 457.68. For some reason or another, Nedtex does not
claim the amount of R 967 457.68, but claims instead R
914 116.60, that is R 53 341-08 less. This difference is
nowhere explained in the record or the pleadings. In my view,
it carries the strong implication that Nedtex submitted a claim
based on quantities that differed from the quantities on which
the contract price estimation as contained in the appointment
letter, was based.
[38] The simple reality, however, is that it is a common cause
between the parties that the final works were not measured
nor certified by the engineer. Without such a certified
measurement at the end of the contract, the final contract price
cannot be determined.
[39] For all of the above reasons, I am of the opinion that the
appeal should succeed.
The following order is accordingly made .:
1. The appea l of the appe llant is upheld.
Page - 11
2. The order of the Court a quo is substituted w ith the following
order.
"(a) the claim of the plaintiff is dismissed.
(b) the plaintiff is to pay the costs of suit of the defendant."
3. The Re spondent is ordered to pay the costs of the appeal,
I agree:
G J DIAMOND
ACTING JUDGE OF THE HIGH COURT
LIMPO PO DIVISION, PO LOKWANE
M NAUDE -ODENDAAL
JUDGE OF THE HIGH COURT OF SOUTH AFRICA.
LIMPOPO DIVISION, POLOKWANE.
APPCARA NCE S :
"
FOR THE APPE LLANTS
INSTRUCT ED BY :
FOR THE RESPONDENT
INSTRUCTED BY :
DATE OF HEARING : 22 AUGUST 2025.
Page - 12
: PPP MOSEHLA
:PPP MOSEHLA
A TTORNEYS INC
POLOKWANE
Qercy@mosehla1nc.co za
: Adv Baloyi
:CHUENE MAHLO
INCORPORATED
POLO KWA NE
D ATE OF JUDGMENT : 9 DE C EMBER 2025.
This judgment was handed down electronically by circulation to the
parties' representatives by email. The date and time for hand-down of the
judgment is deemed to be 9 DECEMBER 2025.