SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION - MAHIKENG
CASE NO: 1576/2021
Reportable: No
Circulate to Judges: No
Circulate to Magistrates: No
Circulate to Regional Magistrates: No
In the matter between:
MAROLE–NAMENG TRADING ENTERPRISE CC PLAINTIFF
and
TEN FLAGS THEME PARK (PTY) LTD DEFENDANT
Coram: MASIKE AJ
Judgment is handed down electronically by distribution to the parties’ legal
representatives by e -mail. The date that the judgment is deemed to be handed
down is 26 JANUARY 2026 at 15h00.
ORDER
(i) The defendant is to pay to the plaintiff R447 679.34.
(ii) The defendant is to pay the plaintiff an amount of R6 890.00.
(iii) Interest on the above amounts at the prescribed mora rate from date
of service of the summons on 29 October 2021 to date of final
payment.
(iv) The defendant’s counter claim is dismissed.
(v) The defendant to pay the costs of suit on a party and party scale
which shall include the costs of counsel on scale “A”.
JUDGMENT
MASIKE AJ
INTRODUCTION
[1] Plaintiff’s claim against the defendant is for R554 237.94 for services
rendered by the plaintiff to the defendant at the specific request of the
employees and or agents of the defendant. The plaintiff further claims R6
890.00 for goods sold and delivered by the plaintiff to the defendant at
the specific request and or insistence of the defendant.
THE PARTIES
[2] The plaintiff is Marole – Nameng Trading Enterprise CC, a close
corporation with limited liability, duly registered in terms of the statutes
of the Republic of South Africa, with principal place of business at Farm
Karussel, 5[...] R[...] Road, Rustenburg.
[3] The defendant is Ten Flags Theme Park (Pty) Ltd (Re gistration number:
2019/627018/07), a private company with limited liability duly registered
and incorporated in terms of the statutes of the Republic of South Africa,
with registered address at plot 4[...], Waterkloof, Rustenburg, North West
Province.
BACKGROUND FACTS
[4] Plaintiff alleges that on or about September 2020 and at the registered
address of the defendant, the plaintiff duly represented by M Malesa
(“Malesa”) and the defendant duly represented by E Lottering
(“Lottering”) and T Tshepe (“Tshepe”), entered into a n oral agreement in
terms of which:
4.1 The plaintiff would provide landscaping and plant hire services to
the defendant.
4.2 Plaintiff would provide written quotation to the defendant
indicating the scope and ser vices and amounts payable for relevant
services required.
4.3 Upon receiving confirmation from the defendant’s representative
that the quotation is acceptable, plaintiff would commence with
irrigation of the plant hire services.
4.4 Upon conclusion of t he relevant services as indicated in the
quotation, plaintiff will deliver to the defendant a tax invoice
confirming the amount payable by defendant to the plaintiff.
4.5 Invoices to the defendant would be payable upon delivery.
[5] It is the pleaded case of the plaintiff that from September 2020 to
December 2020 , the plaintiff performed in terms of the agreement and
Malesa delivered four written quotations to Lottering, an employee of the
defendant.
[6] It is the pleaded case of the plaintiff that Lottering informed Malesa on
the dates on which the quotations were delivered to him , that the
quotations are acceptable and the plaintiff should proceed to render
services as per the quotations.
[7] The plaintiff performed in terms of the agreement and from October 2020
to January 2021, plaintiff caused to be delivered to Lottering, the
employee of the defendant, four tax invoices. The total amount claimed in
the four tax invoices was R1 087 347.94.
[8] It is alleged that the defendant despite having received the tax invoices
has failed and or refused to pay the claimed amounts in terms of the oral
agreement entered into between the plaintiff and the defendant. It is
alleged that the defendant only affected payment to the plaintiff in the
amount of R540 000.00 with the balance due and payable by the
defendant to the plaintiff in the amount of R547 347.94.
[9] The second claim of the plaintiff against the defendant is for goods sold
and delivered by the plaintiff to the defendant at the ins tance and specific
request of the defendant in the amount of R6 890.00.
[10] The defendant defended the matter and filed a counterclaim. The
defendant in its plea to the plaintiff’s particulars of claim, admits the
plaintiff rendered landscaping services from September 2020 to January
2021 and the services were paid for. The defendant further pleaded that
the plaintiff exaggerated the services it rendered and overpriced its
services.
[11] The defendant pleaded that Lottering had no authority to accept
quotations and only T shepe had the authority to accept quotations. As it
relates to the second claim, the defendant pleaded that another service
provider was paid for the goods that the plaintiff sold to the defendant.
[12] In the defendants count erclaim, it is alleged that the plaintiff and
defendant entered into an agreement in terms of which the plaintiff would
supply 100 square meter wooden fence and plantation of palm trees. It is
the case of the defendant that the plaintiff failed to render s ervices in a
competent and workmanlike manner as the fences were not properly
installed, were blown away by the wind within a period of two months
from the date of installation. The palm trees were not properly planted
they withered within a period of two months.
[13] The defendant claims an amount of R155 415.00 for the installation and
supply of the 100 square meter wooden fence and plantation of the palm
trees and return of the damaged wooden fence.
EVIDENCE OF THE PLAINTIFF
[14] The plaintiff calle d one witness, Moses Malesa ( “Malesa”). Malesa
testified that he is the sole member of the plaintiff. The plaintiff renders
landscaping and plant hire services. Malesa told the Court that he was
informed by Tshepe that he would be reporting to Lottering, L ottering
would tell him where to work, he would give invoices to Lottering and
the invoices would be paid after he gave the invoices to Lottering.
[15] Malesa told the Court the procedure followed was that the plaintiff would
render the services, he would give the invoices to Lottering after the
services were rendered, Lottering would approve that the service had
been rendered and he would sign off the necessary documents, payments
would then be made to the plaintiff.
[16] Malesa was referred to the trial bundle, Exhibit “A” in the proceedings.
He confirmed the quotations at pages 1, 2, 3 and 4 were verbally
approved by Lottering. At page 5 of Exhibit “A” is an invoice which was
allegedly signed by Lottering. The invoice is for R324 415.00
[17] On the invoice at page 5 of Exhibit “A”, Malesa testified that the plaintiff
was paid R229 000.00. Malesa testified that he was told by Lottering that
the defendant was waiting for payments and the balance of the invoice
would be paid. At page 6 Malesa was referred to an invoice of R291
065.00. Malesa testified that on this invoice, the defendant paid only
R291 000,00, the invoice was signed by Lottering. There is a balance of
R65.00 on this invoice.
[18] Page 7 of Exhibit “A” is an invoice of R292 352.94, it was signed by
Lottering. No payment has been received in respect of this invoice.
Lottering told Malesa that they were waiting for payment. Page 8 is an
invoice of R179 515.00 , at the bottom of the invoice , in manuscript it is
written R285 000.00.
[19] On page 10 of Exhibit “A” is a consolidated statement which was given
to Lottering. According to the consolidated statement, the defendant was
as of 18 August 2021, indebted to the plaintiff in the amount of R554
237.94. At page 9 of Exhibit “A” is the invo ice from Obaro. Malesa
testified that Lottering requested the plaintiff use its account with Obaro
to purchase irrigation material and the defendant would refund the
purchase price of the irrigation material. The material cost R6 890.00, the
defendant never refunded the amount. Malesa testified that the defendant
never caused for the plaintiff to be told about the defects with the fence or
anything about the palm trees.
[20] Under cross examination, it was put to Malesa that Malesa was supposed
to have approached Tshepe for approval of the payments. Melesa insisted
that he was told that Lottering was the person he had to deal with on the
project.
[21] Malesa testified that he was supposed to plant grass on the area as per the
quotations and the invoice s, this came to 14750m 2. It was put to Malesa
that the defendant disputes that he planted the grass as claimed.
[22] In re – examination Malesa testified that Tshepe was sometimes on site
and sometimes he was not there. The plaintiff then closed its case without
calling further witnesses.
[23] The defendant applied for absolution. In the application for absolution
from the instance Advocate Wessels who appeared for the defendant
submitted that the information of Malesa relied on Lottering and
Lottering was not called as a witness, the signature of Lottering has not
been confirmed and the claimed amounts do not collate. I refused the
application for absolution and indicated that reasons for the refusal would
be provided later.
DEFENDANTS CASE
[24] The defendant called Thapelo Tshepe (“Tshepe”). Tshepe testified that he
is an engineer by profession and sole director of the defendant. Lottering
was the one who brought the plaintiff to the defendant, the plaintiff was
supposed to install the irrigation system.
[25] Lottering was working with two managers. The managers were the ones
who approved the work. Tshepe testified that the procedure for processing
payments was for the invoices to be given to the supervisor, then taken to
the financial mana ger. If the financial manager is not happy, he does not
pay the invoice and tells the supervisor what must be fixed before
payment could be released. Tshepe disputed the claimed area that the
plaintiff worked on to plant the grass. He said the area was jus t 2
hectares. Tshepe testified that the area was measured and found to be
2000m2. This was troubling because the plea of the defendant reads that
the square meters of landscaping service provided by plaintiff is
9817.5m2 as opposed to 14750m2 as suggested in the quotation.
[26] The defendant then applied for an inspection in loco to be conducted on
the area on which grass was planted. I granted the application. The matter
was postponed to 13 December 2024 at Ten Flags Theme Park (“Ten
Flags”) for the inspection in loco.
THE INSPECTION IN LOCO
[27] The inspection in loco was held on 13 December 2024, representatives of
the plaintiff and the defendant were present at Ten Flags to conduct the
inspection in loco. Tshepe and Malesa were also present. Measurements
of the agreed area on which the plaintiff planted grass were taken and the
disputed area. It was agreed between the parties that a joint minute of the
inspection in loco would be prepared and filed. This was attended to. I am
grateful to the attorney s of the plaintiff and the defendant in this regard.
The total agreed measured squar e meters the plaintiff planted grass was
11812.09m2.
[28] The plaintiff , after the inspection in loco was held, applied for an
amendment to its particulars of claim. The defendant opposed the
application. A formal application for amendment was brought before this
Court, it was argued and I granted the application.
[29] I granted the application for amendment of the reference to the square
meters in the particulars of claim and the claimed amount because in my
view there could not have been any prejudice to the defendant. The
defendant disputed the alleged square meters as contained in the
unamended particulars of claim of the plaintiff. A finding that the
defendant was correct that the plaintiff had not measured the area
correctly, would not have amounted in the claim of the plaintiff being
dismissed. At best it would have resulted in a reduction of the plaintiff’ s
claim to the area that it was found to have worked on, this applied equally
to the claimed amount.
[30] The defendant in my view would not be prejudiced by the intended
amendment as it would be entitled to make consequential changes to its
plea, the am endment did not in any way affect the counterclaim of the
defendant and if it was found that the amendment extinguished the
plaintiff’s claim, the defendant would be entitled to costs of the action.
This was not the case.
[31] The plaintiff affected the amendment and the trial continued on 3 June
2025. The defendant elected not to amend its plea despite having been
served with the amended particulars of claim. The further evidence of
Tshepe was led.
[32] Tshepe testified that Lottering was being investi gated because he
appeared to be living beyond his means. Lottering had told the financial
director that Tshepe told him to process certain payments and pay the
plaintiff. Tshepe denied the amounts reflected in the quotations and
invoices. He denied figures that referred to plant hire. He further stated
that there was some grass that was removed and planted near the pool, but
the plaintiff had claimed to have planted that grass. The grass was
removed from the w arehouse area and re -planted near the pool, the
plaintiff should have claimed for labour, not for the grass. He could not
remember the measurements relating to the grass. Tshepe further testified
that he did not remember the plaintiff planting grass at the camping site.
[33] Under cross examination it was put to Tshepe that the plant hire referred
to the trucks that brought the grass to Ten Flags. He conceded this was
correct. Tshepe conceded that he was not present when the grass was
being planted at the pool area, he was not present when the grass wa s
being removed from the warehouse area. He never was presented with a n
invoice for removing the grass from the warehouse area and planting it at
the pool area.
[34] A number of photographs taken when the grass was being planted by
employees of the plaintiff were shown to Tshepe and presented to the
Court. Tshepe indicated he could not remember or he was not certain if
grass was planted on those areas. In some instances, he testified that he
was told that grass was planted in those areas by “my guys”.
[35] Tshepe was then referred to the what sapp bundle. Tshepe admitted that
the whatsapp bundle contained communication between himself and
Malesa at pages 1 to 22. Tshepe sought to clarify the whatsapp
communication by saying he was told to keep communicating with Melsa
and not make him aware that Lottering was being investigated. It was
pointed out to Tshepe that in the whatsapp communication, Tshepe never
disputed the defendant being indebted to the plaintiff.
[36] In re – examination Tshepe said th at the financial manager and the HR
manager were investigating Lottering, that is why Tshepe continued
speaking with Malesa even though they disputed being indebted to the
plaintiff. The financial manager was unfortunately late.
[37] At the conclusion of Tshepe’s evidence, the Court enquired if the HR
manager was still employed by the defendant. Tshepe confirmed that this
was the position. The defendant closed its case without calling any
witnesses.
ANALYSIS
[38] The issue for determination in this matter is whether the plaintiff rendered
services to the defendant as claimed in the amended particulars of claim
and as per the evidence of Malesa. The evidence of Malesa was to the
point. A record of photographs was taken when the grass was being
planted, it was presented to the Court and shown to Tshepe for his
comments. The photographs depict various areas of Ten Flags when the
grass was being planted by employees of the plaintiff.
[39] In my view, Tshepe was not the correct witness to have been called to
deal with the issue of where the grass was planted. His evidence for the
most part consisted of him saying he does not recall, he was not there
when a certain event took place or he was told by “my guys” that grass
was planted there.
[40] The defendant denies being indebted to the plaintiff and Tshepe testified
that the plaintiff exaggerated the invoices but some of the invoices of the
plaintiff were paid , and it is alleged that they were signed off by
Lottering. If Tshepe was the only person who could authorise payments.
How does Tshepe explain the partial payments made for the invoices
dated 23 October 2020 , 19 November 2020 and 30 January 2021. All the
quotations relating to those invoices and the invoices themselves were
signed by Lottering and not Tshepe.
[41] A plaintiff who claims payment has to allege a failure by the defendant to
make payment. It is however required of a defendant, who wishes to rely
on a payment in defence, to allege and prove the fact of payment.1
1 Pillay v Krishna 1946 AD at 946; Standard Bank of South Africa Ltd v Oneanate Investments (Pty) Ltd (In
Liquidation) [1997] ZASCA 94; 1998 (1) SA 811 (SCA) at para 823D)
[42] It is not in dispute that employees of the plaintiff were at Ten Flags on the
dates the plaintiff alleges. In my view, within a balance of probabilities, it
is more probable that the plaintiff rendered the services as claimed in the
amended particulars of claim and for the amounts claimed in the amended
particulars of claim.
[43] I am not convinced that when Tshepe admitted to Malesa that the
defendant is indebted to the plaintiff this was all a ploy on instructions of
the erstwhile financial manager and the HR manager. The financial
manager is late according to Tshepe, but the HR manager is very much
alive, and he was not calle d as a witness to corroborate the version of
Tshepe. Tshepe even said the HR manager is still employed by the
defendant.
[44] In Shishonga v Minister of Justice and Constitutional Development and
Another2 the court said the following:
"A party's failure to call available witnesses may in exceptional circumstances lead to
an adverse inference being drawn from such failure against the party concerned. The
extent to which such an inference can be drawn will depend on the circumstances of
the case. The Court should, inter alia, consider the following: Was the party concerned
perhaps under erroneous but bona fide impression that he had proved his case and that
there was therefore no need to have called the wit ness? Is there a possibility that the
party concerned believed that the potential witness was biased, hostile or unreliable?"
[45] I am of the view there is no reason for this Court not to draw an adverse
inference against the case of the defendant for f ailing to call the HR
manager to corroborate what Tshepe had said regarding the whatsapp
communications, from the reading of the whatsapp communication,
2 2007 (4) SA 135 (LC) at paragraph 112
Tshepe admitted the defendant is indebted to the plaintiff, requests for
extensions were made for payment by Tshepe. Malesa event went so far
as to negotiate for the defendant to pay a reduced amount on the monies
owing to the plaintiff.
[46] As it relates to the plaintiff’s second claim, the evidence of Tshepe does
not challenge this claim. I have f urther noted that no evidence was led in
support of the counterclaim of the defendant. The counter claim of the
defendant must accordingly fail.
[47] I refused the application for absolution from the instance because there
was no merit to the argument by Advocate Wessels that Lottering had not
been called as a witness, that the signature on the invoices it was not
verified to be that of Lottering. What Advocate Wessels missed is, some
invoices of the plaintiff were partly paid, and others were not paid at all.
It was for the defendant to answer on why the invoices were paid even
though it was pleaded that it was only Tshepe who could authorise
payments and the invoices were never presented to him. There was a case
for the defendant to answer.
[48] Advocate Wessels in her heads of argument contends that the plaintiff
does not set out how the amount of R447 679.35 was arrived at in the
amended particulars of claim. Advocate Wessels in her heads of argument
contends that it appears the figure was arrived a t by dividing the amount
R447 679.35 with the area of 11 812.09m 2. Advocate Wessels contends
that for the planting of the grass it comes down to R37.50 per/m 2 whereas
in terms of the agreement it was agreed at R29.50 per/m 2 and because the
plaintiff has failed to set out how the amended claimed amount of R447
679.35 was arrived at, plaintiff’s claim must be dismissed.
[49] The contention by Advocate Wessels is clearly wrong. The quotation and
invoices were not made up of the agreed figure of planting grass per
square meter alone, they also included the rate s for plant hire, the rates
for supplying of trees, irrigation labour and the supply of wooden fence.
[50] The plaintiff deducted from the initial claimed area of 1 4750m2 the
agreed total area in which grass was planted which is 11812.09m 2 the
difference is 2937.91m 2. The plaintiff then multiplied the area of
2937.91m2 by R29,50. The R29.50 is the agreed rate per square meter for
planting grass. This gives one the figure to R86 668.35 excluding V AT.
When V AT at 15% (percent) is added to the figure of R86 668.35 it
amounts to R99 668.60. When R99 668.60 is deducted from the initial
claimed amount of R1 087347.94 this leaves an amount of R987 679.34
when one deducts the amount paid by the defendant to the plaintiff of
R540 000.00 this leaves an amount of R447 679.34 which is the claimed
amount in the amended particulars of claim . The p laintiffs claim
resultantly, must succeed.
COSTS
[51] It is a trite principle in our jurisprudence that costs follow the cause, and I
have not found any reason to deviate from this principle . The trial of this
matter was lengthy, it was of importance to the plaintiff, but it was not
complex. In exercising my discretion in awarding costs and considering
the scale applicable, I have not found any reason to order costs on a scale
other than scale “A”.
[50] Resultantly, the following order is made:
ORDER
(i) The defendant is to pay the plaintiff R447 679.34.
(ii) The defendant is to pay the plaintiff an amount of R6 890.00.
(iii) Interest on the above amounts at the prescribed mora rate from date
of service of the summons on 29 October 2021 to date of final
payment.
(iv) The defendant’s counterclaim is dismissed.
(v) The defendant is to pay the costs of suit on a party and party scale
which shall include the costs of counsel on scale “A”.
__________________________________
T MASIKE
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
APPEARANCES
For the Plaintiff: Mr N J Esterhuyse
Instructed by: Du Plessis van Der WestHuizen Inc
C/o LFS Attorneys Inc
Mahikeng
For the Defendant: Advocate C Wessels
Instructed by: Pule Attorneys
C/o Motshabi Attorneys
Mahikeng
Date Heard : 16 July 2025
Date Handed Down: 25 January 2026