IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
RAZZMATAZZ CIVIL PROPRIETARY LIMITED
[Registration No. 2006/006525/07)
and
VAAL CENTRAL WATER
Not reportable
Case no: 5385/2024
APPLICANT
RESPONDENT
Neutral citation: Razzmatazz Civil Proprietary Limited v Vaal Central Water
(5385/2024) [2026] ZAFSHC 313 (25 May 2026)
Coram: VANZYL J
Heard: 29 MAY 2025
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives by e-mail and released to SAFLII. The time and date for hand
down is deemed to be 12h45 on 25 May 2026. The order in this matter was handed
down on 15 May 2026 at 1 Oh 30.
Summary: Application procedure - construction payment certificate - alleged
withdrawal thereof- question whether interim or final payment certificate - foreseen
bona fide and material factual disputes - application dismissed - alternatively, when
adjudicated on the merits, also dismissed - special costs order.
2
ORDER
1 The application is dismissed.
2 The applicant shall pay the costs of the application on an attorney and client
scale.
JUDGMENT
Van Zyl J
[1] In this application the applicant is seeking an order that the respondent is to pay
the applicant the amount of R4 403 752.30, with interest, and that the applicant also
be ordered to pay the costs of the application.
The applicant's case in the founding affidavit
[2] During 2014 the respondent, previously known as 'Bloemwater', invited tenders
it termed to be Tender BW178/RF/12: New Ductile Iron Pipeline - Rustfontein Plant
to Lesaka Reservoirs in the Free State Province ('the tender'). On 28 October 2014
the applicant was appointed as service provider by the respondent in respect of the
said tender.
[3] In compliance with the appointment, a written agreement was concluded
between the parties during or about February 2015. The agreement further consisted
of the tender documents submitted and the General Conditions of Contract for
Construction Works (Second Edition), 2010, prepared by the South African Institution
of Civil Engineering ('the GCC'). A complete copy of the GCC is attached to the
founding affidavit as annexure 'RWP6'.
[4] The respondent appointed Babereki Consulting Engineers CC ('the engineer')
as its engineer and agent to fulfil the functions of the engineer in terms of the GCC.
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[5] On 27 November 2014, and after the site handover meeting took place, the
applicant established on site and commenced with the work.
[6] As determined in the GCC, the applicant submitted monthly statements to the
engineer. The engineer, after measuring the work and determining the value, issued
a payment certificate. An invoice was then issued by the applicant on the strength of
such a certificate, and it was presented to the respondent for payment. Payment of
such certificate, once received by the respondent and signed by the engineer, was to
be made within 28 days, failing which agreed interest was payable.
[7] On 8 May 2024 a payment certificate, no. 32, was approved by the engineer
certifying that the amount claimed in this application, R4 403 752.30, was due to the
applicant. A copy of this payment certificate is attached to the founding papers as
annexure 'RWP1 O'. A covering letter of the engineer, also dated 8 May 2024,
addressed to the respondent, is attached to the founding papers as annexure
'RWP11'. This letter stated the following with reference to the relevant tender:
'We have pleasure in submitting for your approval Payment Certificate No. 32, which is dated
8 May 2024. The amount of R4, 403, 752-30 (including VAT) is now due for payment to the
Contractor, Razzmatazz Civil (Pty) Ltd. This is the final payment certificate for this Contract,
which includes the release of retention money and the payment for all outstanding claims in
terms of the Engineer's rulings.'
[8] On the same date, 8 May 2024, the applicant issued an invoice, addressed to
the respondent, on the strength of the said payment certificate no. 32. A copy of this
invoice is attached to the founding papers as annexure 'RWP9'.
[9] According to the applicant the claim was payable by no later than 6 June 2024.
The parties are ad idem that no payment was forthcoming from the respondent in
favour of the applicant in respect of payment certificate no. 32.
favour of the applicant in respect of payment certificate no. 32.
[1 O] On 15 July 2024 the Contracts Director of the applicant, Mr Stewart Fletcher,
sent an e-mail to Ms Baatjies of the respondent, the subject line of which e-mail
reflects 'RE: BW178/RF/12: Final Approval Certificate'. It reads as follows:
'Good Day Colette ,
4
I would like to request a meeting with Vaal Central Water to discuss a few matters:
• Non-payment of outstanding payment certificate;
• Final approval certificate;
• Final statement of Claim.
I am available the 16 or 17 or 23 July 2024.'
[11] According to the applicant no response was forthcoming from the aforesaid email.
[12] On 12 August 2024 the applicant's attorney of record addressed a letter of
demand to the respondent, calling for payment in terms of payment certificate no. 32.
No response was received from the respondent in reply to this correspondence.
The respondent's case in the answering affidavit
[13] According to the respondent payment certificate no. 32, which the applicant
relies on for payment of its invoice, was withdrawn by the engineer . In support of this
notion, a letter dated 4 July 2024, which was received by the respondent from ·the
engineer, is attached to the answering affidavit as annexure 'OP1 '. A copy thereof
was also sent to Mr Fletcher of the applicant. The heading of the letter refers to the
tender and further reads as follows:
'Ms Colette Baatjies' e-mail of 10 June 2024, wherein she requested the Final Completion
(sic) Certificate and Close Out Report, refers.
After careful consideration, the Engineer has determined that he cannot at this stage issue
the Final Approval Certificate, as contemplated in clause 5.16.1 of GCC 2010, for the simple
reason that the pipeline has not been pressure tested.
Some work has been done on the Close Out Report, but until the pipeline has been
successfully pressure tested and commissioned, the Close Out Report cannot be issued.'
[14] As is evident from the aforesaid, the said letter from the engineer was in
response to an e-mail from Ms Colette Baajies of the respondent, dated 10 June
2024, addressed to the engineer, wherein she requested that the Final Completion
Certificate and Close Out Report be submitted. A copy of this e-mail is attached to
the answering affidavit as annexure 'OP2'.
the answering affidavit as annexure 'OP2'.
[15] The respondent further stated, inter a/ia, as follows in its answering affidavit:
5
'30. I purposefully pause and state that it was previously agreed between all parties
concerned that the Certificate of Completion will be issued after the Hydrostatic Pressure
Testing between SV5240 and SV14172 is done before the end of the defects liability period
and when the remedial works are completed.
31. As per the letter/notice from the engineer the remedial works are not completed and
the pipeline has not been pressure tested by the applicant.
32. On a point of clarity, the applicant is responsible for the pressure testing of the pipeline.
33. In the absence of the above, the defects liability period has been automatically
extended.
34. As a further result of the above, a Certificate of Completion and the Final Approval
Certificate cannot be issued, and is the respondent accordingly entitled to withhold the
retention monies which forms the basis of the current application.
37. In the premises, the application is premature and stands to be dismissed with costs on
a punitive scale.
70. The retention monies will only become due and payable after the works have been
completed. The respondent is entitled to withhold the monies until such stage is reached.'
[16] The respondent furthermore stated that a meeting was held with the applicant
on 22 May 2024 to discuss the non-payment of its invoice based on payment
certificate no 32. During the said meeting the applicant was represented by Mr
Stewart, whilst the respondent was represented by Mr Mnyaka and Ms Baatjies. Their
confirmatory affidavits are attached to the answering affidavit. According to the
respondent 'the matter could, however, not be resolved'.
The applicant's replying affidavit
[17] The applicant referred to annexure 'OP 1' to the answering affidavit on which the
respondent relies for its contention that payment certificate no. 32 has been
withdrawn and points out that there is nothing mentioned in the said letter regarding
payment certificate no. 32 and the invoice that was sent on the strength thereof.
payment certificate no. 32 and the invoice that was sent on the strength thereof.
[18] In paragraph 6.5 of the replying affidavit, the applicant stated as follows:
'And the court need not look further than the simple fact that by 4 July 2024, payment of the
payment certificate and the invoice had already been overdue. The entire contractual
substratum caters for a squaring up exercise once the stage of a Final Approval Certificate
is reached and certified. That may even result in a negative certificate concerning payment
6
in a completion statement. The whole idea is to certify interim payments for work done as
the works progress, which means - in law - that the certificate for payment must be paid. It
does no [interim payment certificates] finally deal with what is owing inter se. We are not
there yet.'
[19] With reference to the averment in the respondent's answering affidavit that it
was previously agreed that the certificate of completion will be issued only after
compliance of certain conditions, the applicant stated as follows in its replying
affidavit:
'6. 7 There are many problems with this statement:
6.7.1 Firstly, and I append Mr Stewart Fletcher's confirmatory affidavit as "RWP1", there was
no such an agreement reached concerning payment of certificate 32.
6.7.2 Secondly, the paucity of information and evidence tendered as to the date, time and
place of the conclusion of this apparent agreement is to be marked.
6. 7.3 [The applicant is no longer relying on the contention previously made in this sub
paragraph].
6.7.4 Fourthly and lastly on this, the evidence tendered is somewhat inconsistent with what
is elsewhere contended. To what completion certificate does the deponent exactly refer?
Practical or final? If it is the practical completion certificate, this makes absolutely no sense.
And I have already explained the relevance of this concerning certificate 32 and the
Waterboard's payment obligation that flow from it.'
[20] According to the applicant there exists no dispute of fact and the attempt at
creating one has failed.
[21] With regard to the averment in the answering affidavit that as per the letter from
the engineer, the remedial works are not completed and the pipeline has not been
pressure tested by the applicant, the applicant responded as follows in its replying
affidavit:
'This isn't really relevant, but I do answer briefly as follows. There were design defects
identified by an independent appointed expert employed by the Waterboard. These design
identified by an independent appointed expert employed by the Waterboard. These design
defects had to be remedied, and has caused a delay on the pressure testing. This caused
the delay in the execution of the works and additional remedial measures. The Waterboard
had to attend to those by the end of November 2023. Once this is done it will enable
Razzmatazz to do the pressure testing at the end of the defects liability period. After that is
7
done the final completion certificate will be issued (if the pipeline passes the test). But I stress
that this is for informative purposes only. It has nothing to do with the present claim.'
[22] According to the applicant nothing in the GCC entitles an engi_neer to 'withdraw'
a certificate after it already has become due for payment.
[23] In respect of the averment regarding the meeting between the parties, the
applicant stated as follows:
'Mr Fletcher admits this. And he admits that all that could not be truly satisfied at that stage
was that the Waterboard would pay what it was owing. Nothing else could be unfortunately
resolved.'
Evaluation of the application
[24] The applicant's claim is one in contract and is premised on payment certificate
no. 32 and the applicant's tax invoice issued on the strength thereof.
[25] The first material and bona fide factual dispute between the parties relates to
the nature of the relevant payment certificate.
[26] It is the applicant's case that payment certificate no. 32 is an interim payment
certificate. The applicant holds this stance even in its replying affidavit.
[27] On the other hand, it is the respondent's case that payment certificate no. 32 is
a final payment certificate, as expressly stated by the engineer in its letter of 8 May
2024, annexure 'OP1' to the answering affidavit, wherein it was pertinently stated
that the said payment certificate is the 'final payment certificate for this Contract,
which includes the release of retention money and the payment for all outstanding
claims in terms of the Engineer's rulings'.
[28] The question whether payment certificate no. 32 is an interim payment
certificate or a final payment certificate is essential to the adjudication of this
application, since the GCC contains different terms and conditions in relation to the
respective types of payment certificates . Interim payments are regulated by, inter
a/ia, clauses 6.10.1 to 6.10.4 of the GCC, whilst payments in terms of a final payment
a/ia, clauses 6.10.1 to 6.10.4 of the GCC, whilst payments in terms of a final payment
certificate are regulated by, inter alia, clause 6.10.9.
8
[29] The further material factual dispute between the parties is whether payment
certificate no. 32 had been withdrawn and if so, whether it was validly done.
Disputes of fact
[30) Already in the founding affidavit, the applicant stated, 'there is no conceivable
or viable factual or legal basis for the refusal [of payment]' and 'there really can be no
factual disputes between the parties'. As submitted on behalf of the respondent the
aforesaid gives the distinct impression that the applicant, from the onset, anticipated
that a dispute of fact will arise on the papers,
[31] In the well-known matter of Room Hire Co (Pty) Ltd v Jeppe Street Mansions
(Pty) Ltd 1949 (3) SA 1155 at 1163 it was held, inter a/ia, as follows at 1162:
'Or the application may even be dismissed with costs, particularly when the applicant should
have realised when launching his application that a serious dispute of fact was bound to
develop. It is certainly not proper that an applicant should commence proceedings by motion
with knowledge of the probability of a protracted enquiry into disputed facts not capable of
easy ascertainment, but in the hope of inducing the Court to apply Rule 9 to what is essentially
the subject of an ordinary trial action.'
[32] As evident from what was set out earlier in the judgment, the application papers
are fraught with disputes of fact. The parties are ad idem that they convened a
meeting for 22 May 2024 where the representatives of both parties were present.
During the said meeting the respondent indicated that it was not inclined to make
payment in respect of payment certificate no. 32. By virtue of the discussions which
ensued at this meeting, the applicant must have become aware of the contentions of
the respondent regarding the non-payment. The bare denial of the existence of
disputes of fact by the applicant in its replying affidavit is also unhelpful. As at date of
the meeting, the bona fide disputes of fact between the parties, therefore, came to
the meeting, the bona fide disputes of fact between the parties, therefore, came to
the knowledge of the applicant. Despite this, the applicant elected to follow application
procedure instead of action procedure.
[33] In the circumstances where a bona fide and material dispute of fact was
anticipated by the applicant or, at the very least, should have been anticipated by the
applicant, the application stands to be dismissed.
9
The merits of the application
[34] In the alternative, and should I have erred in my finding regarding the
foreseeability of bona fide and material factual disputes by the applicant, the merits
of the application is to be considered.
[35] It is trite that when disputes of fact have arisen on the affidavits in application
proceedings, a final order may be granted if those facts averred in the applicant's
affidavits which have been admitted by the respondent, together with the
facts alleged by the respondent, justify such an order, unless where the allegations
or denials of the respondent are so far-fetched or clearly untenable that the court is
justified in rejecting them merely on the papers. See Plascon Evans Paints Ltd v Van
Riebeeck Paints (Ply) Ltd 1984 (3) SA 623 (A).
Payment of retention money
[36] In paragraph 34 of the answering affidavit, the respondent stated as follows:
'34. As a result of the above, a Certificate of Completion and the Final Approval Certificate
cannot be issued, and is the respondent accordingly entitled to withhold the retention monies
which forms the basis of the current application.'
[37] The applicant did not make any positive or assertive allegation in its replying
affidavit that the payment of payment certificate no. 32 relates to the payment of
money other than retention money.
[38] Clause 5.14.5 of the GCC determines, inter alia, as follows:
'5.14.5 Upon the issue of a Certificate of Completion, unless otherwise provided in the
Contract;
5.14.5.1
5.14.5.2 The Defects Liability Period shall commence,
5.14.5. 3 The retention shall be reduced to half in terms of Clause 6.10.5.'
[39] In respect of the payment of retention money, clause 6.10.5 of the GCC provides
as follows:
'6.10.5 Save to the extent otherwise provided in clause 6.6.6, when a Defects Liability Period
is specified, one half of the retention money shall become due and shall be paid to the
Contractor when the engineer has issued a Certificate of Completion in terms of Clause
10
5.14.4. The other half shall become due and shall be paid to the Contractor within fourteen
days of the expiration of the Defects Liability Period, which may be extended in terms of
- clauses 5.14.4 or 7.8.1, if necessary;
Provided that:
6.10.5.1 If the Defects Liability Period is extended in terms of clauses 5.14.4 or 7.8.1
or if the expiration of the original Defects Liability Period there remains to be executed by the
Contractor any works ordered during such period in terms of clauses 7.7 and 7.8, the
Employer shall be entitled to withhold payment until the completion of the work concerned,
of so much of the second half of the retention money as shall represent the cost of such work;
6.10.5.2 In the event of different Defects Liability Periods having become applicable to
different parts of the Works pursuant to Clause 5.14, the expression "retention money" shall
be deemed to mean such proportion of the total retention money as is applicable to each
completed part of the Works; and
6.10.5.3 If a Defects Liability Period is not specified, the whole amount of the retention
money shall become due and shall be paid to the Contractor when the Contractor has
become entitled, in terms of clause 5.16.1, to receive a final Approval Certificate.'
[40] From the aforesaid, it is evident that when a defects liability period is specified,
upon the issue of a certificate of completion the defects liability period commences,
and the first half of the retention money becomes payable, whilst the second half
becomes payable depending on the specified defects liability period, with an
entitlement of the employer to withhold payment in certain circumscribed
circumstances. If a defects liability period is not specified, the whole amount of the
retention money becomes due and shall be payable to the contractor when the
contractor has become entitled, in terms of clause 5.16.1. to receive a final approval
certificate.
[41] According to the respondent, a certificate of completion has not yet been issued
[41] According to the respondent, a certificate of completion has not yet been issued
by the engineer, nor has the defects liability period expired with all outstanding works
having been done. A final approval certificate has also not yet been issued by the
engineer, and it is not the applicant's case that it has become entitled to receive such
a final approval certificate. These allegations are not denied by the applicant.
[42] It was submitted on behalf of the applicant that the proviso to clause 5.16.1 of
the GCC, which deals with the issuing of the final approval certificate, constitutes a
11
full and complete defence to the respondent's case. I cannot agree with this
contention. The said proviso reads as follows:
'Provided that the issue of the Final Approval Certificate shall not be a condition precedent to
the payment to the Contractor of the second half of the retention money in accordance with
Clauses 6.10.5.1 and 6.10.5.2.'
[43] From the aforesaid it is, in my view, evident that the prohibition contained in the
proviso only relates to the payment of the second half of the retention money in
accordance with clauses 6.10.5.1 and 6.10.5.2. The respondent's reliance upon the
contention that the said retention money is not yet payable, is the extension of the
defects liability period and unfinished works, as provided for in clause 6.10 .5.1, and
not the absence of the final approval certificate.
[44] Therefore, I agree with the submission on behalf of the respondent that no part
of the retention money has yet become due and payable by the respondent to the
applicant.
Final payment certificate
[45] Clause 6.10.9 of the GCC determines as follows in respect of a final payment
certificate:
'6.10.9 Within 14 days of the date of final approval as stated in the Final Approval Certificate,
the Contractor shall deliver to the Engineer a final statement claiming final settlement of all
monies due to him (save in respect of matters in dispute, in terms of clauses 10.3 to 10.11,
and not yet resolved). The Engineer shall within 14 days issue to the Employer and the
Contractor a Final Payment Certificate, the amount of which shall be paid to the Contractor
within 28 days of the date of such certificate, after which no further payment shall be due to
the Contractor (save in respect of matters in dispute , in terms of Clauses 10.3 to 10.11 and
not yet resolved).'
[46] The parties appear to be ad idem that a final approval certificate has not yet
been issued by the engineer. The engineer could therefore not have issued a valid
final payment certificate.
final payment certificate.
[47] It, however, is evident from the engineer's cover letter, annexure 'RWP1 0' to
the founding papers, that the engineer intended payment certificate no. 32 to have
12
been a final certificate of payment. If it was an interim payment certificate as
contended by the applicant, the (unanswered) question arises why the applicant itself
in the email of Mr Fletcher, annexure 'RPW12' requested that the final approval
certificated and the final statement of claim be discussed at the proposed meeting
between the parties.
Conclusion
[48] From the preceding paragraphs it is evident that the retention money was not
yet due and payable to the applicant and, in addition, in the absence of a final
approval certificate, the engineer could not have issued a valid final payment
certificate.
[49] From the correspondence attached to the founding affidavit, annexures 'OP1'
and 'OP2', read together and in context, it is evident that, according to the engineer,
the final c.ompletion certificate and the final approval certificate could not be issued at
that stage, because the pipeline has not yet been pressure tested. On the applicant's
own version in reply, it is the applicant's responsibility to execute the said pressure
testing. Although the applicant stated that it gave this explanation for mere informative
purposes, it is, in my view, relevant to the dispute between the parties.
[50] In the circumstances the issuing of the final payment certificate no. 32 was
premature and consequently the respondent's version that payment certificate no. 32
was withdrawn, is to be accepted.
Costs
[51] The respondent is seeking a punitive costs order against the applicant.
[52] It is trite that special considerations arising from the circumstances of the matter
or from the conduct of the losing, must be present before an order of attorney and
client costs is made. In the well-known case of Ne/ v Landbouwers Ko-Operatiewe
Vereeniging 1946 AD 597 at 607 the following was stated:
'The true explanation of awards of attorney and client costs not expressly authorised
by Statute seems to be that, by reason of special considerations arising either from
by Statute seems to be that, by reason of special considerations arising either from
the circumstances which give rise to the action or from the conduct of the losing party,
13
the court in a particular case considers it just, by means of such an order, to ensure
more effectually t~an it can do by means of a judgment for party and party costs that
the successful party will not be out of pocket in respect of the expense caused to him
by the litigation.'
[53] In casu, I agree with the submissions of behalf of the respondent that the
applicant has abused the court process by having launched this application when it
was pre-mature to have done so and furthermore, in the face of clear and bona fide
disputes of fact regarding the applicant's entitlement to payment. The applicant's
unwarranted application will leave the respondent out of pocket as a result of litigation
that it should not have endured and that should not have seen the light of day.
Order
[54] The following order is made:
1 The application is dismissed.
2 The applicant shall pay the costs of the application on an attorney and client
scale.
CVANZYL
JUDGE OF THE HIGH COURT
14
Appearances:
For the Applicant: S Grabler SC
Instructed by: Graham Attorneys, Bloemfontein
For the Respondent: DR Thompson
Instructed by: Mhlokonya Attorneys, Bloemfontein