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[2026] ZANCHC 62
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MACP Construction (Pty) Limited v Joe Morolong Local Municipality (680/2024) [2026] ZANCHC 62 (26 June 2026)
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
CASE NO:
680/2024
Reportable:
YES / NO
Circulate to
Judges:
YES / NO
Circulate to
Magistrates:
YES / NO
Circulate to Regional
Magistrates: YES / NO
In
the matter between:
MACP
CONSTRUCTION (PTY)
LTD
Plaintiff
and
JOE
MOROLONG LOCAL
MUNICIPALITY
Defendant
Neutral Citation:
MACP Construction (Pty) Limited v Joe Morolong Local
Municipality (680/2024)
Heard on:
5 June 2026
Delivered on:
26 June 2026
Coram
:
Olivier AJ
Summary:
Civil Procedure – Provisional Sentence – Legal
position confirmed. plaintiff’s claim based on liquid document
– defendant unable to show an inability to satisfy the judgment
debt, or an even balance of success in the main case, or reasonable
prospect that oral evidence may tip the balance of success in the
defendant’s favour. Provisional sentence justified.
ORDER
In
the result, the following order is made:
1.
Provisional sentence is granted in favour
of the plaintiff against the defendant for:
1.1
Payment in the amount of
R734 000.54 (Seven Hundred and
Thirty-Four Thousand Rand and Fifty-Four Cents)
;
1.2
Interest on the amount of R734 000.54 (Seven Hundred and
Thirty-Four Thousand
Rand and Fifty-Four Cents) a
tempore morae
,
calculated from 28 July 2023 to date of final payment; and
1.3
Costs of suit on Scale “B” as
referred to in Rule 69(7), read with Rule 67A(3) of the Uniform Rules
of Court.
JUDGMENT
OLIVIER
AJ
1.
The plaintiff approaches this Court for provisional sentence in the
total amount of R734 000.54 (Seven Hundred and Thirty-Four
Thousand Rand and Fifty-Four Cents) (“
the claim amount
”
),
plus interest and costs based on the alleged non-payment by the
defendant of an interim payment certificate and invoice issued
by the
plaintiff in the said amount.
2.
The matter is opposed and the parties have
duly filed their answering as well as replying affidavits.
3.
The relevant undisputed facts in this
matter are as follows:
3.1
That the plaintiff and the defendant entered into an agreement during
September
2022 in terms whereof the plaintiff was supposed to attend
to the building of a road (“
the project
”
)
and that the agreement incorporated the General Conditions of
Contract for Construction, Third Edition, 2015 (“
the
GCC
”
);
3.2
That the defendant appointed BMH Africa Engineers (Pty) Ltd (“
BMH
”
)
as its agent and specifically as the engineers on the project with
full authority to act in accordance with the terms of the above
agreement and the GCC which would include the authority to bind the
defendant to make payment of all amounts certified by BMH in
terms of
interim and final payment certificates;
3.3
That, in terms of the GCC, the defendant is obliged to make payment
of the amount
due to the plaintiff within 28 (twenty-eight) days from
receipt of the payment certificate(s) referred to in the previous
paragraph
subject to the plaintiff issuing a tax invoice to the
defendant in the amount due;
3.4
That BMH issued an interim payment certificate (herein after referred
to as
“
the initial payment certificate
”
)
for the claim amount on or about 17 October 2023 (initially on 30
June 2023) and that the plaintiff issued an invoice, addressed
to the
defendant, in the same amount and on the same day; and
3.5
That the claim amount has not been paid by the defendant.
4.
The plaintiff issued a provisional sentence
summons against the defendant on 14 March 2024 whereupon the
defendant filed its answering
affidavit on or about 24 July 2024.
The plaintiff’s
replying affidavit was filed on or about 31 July 2024.
5.
It should be mentioned that the question as
to whether the plaintiff complied with the formal requirements of
Rule 8 of the Uniform
Rules of Court (“
the
Rules
”
)
was never in issue and upon a proper consideration of the papers in
the matter, I am satisfied that the plaintiff did in fact
comply with
the said formal requirements and I will therefore not spend any
further time on this issue.
6.
It is trite that provisional sentence is
available to a plaintiff who is armed with a liquid document and it
is common cause that
in the present matter the plaintiff relies on
the initial payment certificate issued by BMH on behalf of the
defendant, in its
claim against the defendant.
7.
It
is further trite and needs no further discussion, that payment
certificates such as the one relied on by the plaintiff, are deemed
to be liquid documents.
[1]
8.
Seemingly in keeping with the above legal
position, the defendant, neither in its answering affidavit, nor in
its unsigned heads
of argument, disputed the question whether the
initial payment certificate relied upon by the plaintiff is a liquid
document and
that the plaintiff’s claim is in fact based on a
liquid document.
9.
Surprisingly however, it was argued on
behalf of the defendant that the initial payment certificate relied
upon by the plaintiff
is not a liquid document and that the plaintiff
has consequently failed to make out a case for the provisional
sentence sought.
10.
Mr. Mongala, who appeared for the defendant
based his above argument on a letter from the defendant and addressed
to the plaintiff
dated 21 September 2022 in terms whereof the
plaintiff’s tender for the project was accepted and
specifically to a paragraph
in said letter that reads as follows:
“
The
Works will be executed in terms of Contract No. B196/2019. The above
project description and Contract number must be quoted
in all
correspondence.
”
11.
With reference to the initial payment
certificate relied upon by the plaintiff and with reference
specifically to the covering letter
that accompanied the initial
payment certificate, Mr. Mongala argued that the initial payment
certificate is rendered illiquid
by the fact that the contract number
is not mentioned in said covering letter.
12.
I find this argument to be artificial and
bordering on the desperate, seeing that the contract number appears
very clearly on the
opening page of the initial payment certificate
itself.
13.
I can therefore find no merit in this
argument on behalf of the defendant and I therefore find that the
plaintiff’s claim
is in fact based on a liquid document.
14.
It
has been held that the theory behind provisional sentence is that it
is granted because the Court is provisionally satisfied
that the
plaintiff will be successful in the principal action, based on the
presumption of the genuineness and the legal validity
of the
documents placed before Court.
[2]
15.
It
is also trite that once a plaintiff has shown that his claim is based
on a valid liquid document, that the said document was
presented for
payment and that payment was not made, the plaintiff would ordinarily
be entitled to provisional sentence
[3]
and that the onus then shifts to the defendant to admit or deny his
liability and, if liability is denied, set out the grounds
upon which
the denial is based.
[4]
16.
In the present matter, the only defence
raised by the defendant in its answering affidavit is that BMH issued
a revised payment
certificate (herein after referred to as “
the
amended payment certificate
”
)
in the amount of R481 097.28 (Four Hundred and Eighty-One
Thousand And Ninety-Seven Rand and Twenty-Eight Cents) (“
the
amended amount
”
)
and that the defendant is indebted towards the plaintiff only in the
amended amount.
17.
In
Twee
Jonge Gezellen (Pty) Ltd and Another v Land and Agricultural
Development Bank of South Africa t/a The Land Bank and Another
[5]
the
apex Court dealt with the constitutionality of the provisional
sentence procedure and held that the provisional sentence procedure
does constitute a limitation to the right to a fair trial
[6]
but that the limitation might be justified where courts are afforded
a discretion to refuse provisional sentence in the following
circumstances:
17.1
Where there is an inability on the part of the defendant to satisfy
the judgment debt;
17.2
Where the defendant can show, on the papers, an even balance of
success in the main case; and
17.3
Where the defendant can show a reasonable prospect that oral evidence
may tip the balance of
success in the favour of the defendant.
[7]
18.
In the present matter the defendant did not
allege an inability to pay the amount of the judgement debt (the
claim amount) although
Mr. Mongala, again outside the scope of his
papers and heads of argument, intimated as much during his argument.
The above intimation as
well as the submission made in the heads of argument for the
defendant to the effect that oral evidence
might tip the balance of
success in the favour of the defendant, are made without any
substance or support and cannot be sustained.
19.
The only question, in my view, to be
answered is whether the defence raised by the defendant, namely that
the initial payment certificate
was amended to a payment certificate
in a lower amount, affords the defendant an even balance of success
in the main case.
20.
The parties are
ad
idem
, as was already mentioned, that
the agreement between them would incorporate the terms of the GCC.
21.
Clause 6.10.4 of the GCC states as follows:
“
The
Employer’s Agent
[8]
shall
deliver to the Employer and the Contractor the payment certificate
referred to in Clause 6.10.1 within 7 days of the receipt
by the
Employer’s Agent of the Contractor’s said statement. Any
dissatisfaction in respect of such payment certificate
shall be dealt
with in terms of Clause 10.2. The Employer shall pay the amount due
to the Contractor within 28 days of receipt
by the Employer of the
payment certificate …
”
(my
omissions)
Suffice it to say that
clause 6.10.1 of the GCC refers to interim payment certificates.
22.
Clause 10.2.1 affords the plaintiff and the
defendant the right to deliver a written dissatisfaction claim to BMH
in respect of
any matter arising out of or in connection with the
agreement between the parties whilst clause 10.2.2 of the GCC states
as follows:
“
If,
in respect of any matter arising out of or in connection with the
Contract, which is not required to be dealt with in terms
of Clause
10.1, the Contractor or the Employer fails to submit a claim within
28 days after the cause of dissatisfaction, he shall
have no further
right to raise any dissatisfaction on such matter
.”
23.
It should be stated, for the sake of
completeness, that clause 10.1 of the GCC deals with the applicable
provisions where the contractor
claims for an extension of time for
the completion of the project and suffice it to say that the
provisions of clause 10.1 are
not applicable in the present matter.
24.
It is not in dispute that the defendant has
not raise any dissatisfaction claim after delivery of the initial
payment certificate
and it is also not in dispute that the amended
payment certificate was delivered after the provisional sentence
summons was served
on the defendant nor was it in contention that the
agreement between the plaintiff and the defendant was cancelled on 1
November
2023 in other words before the issuing of the provisional
sentence summons and the delivery of the amended payment certificate.
25.
It is apposite to also mention the
provisions of clause 9.3.2 of the GCC which deals with the
termination of the agreement and which
provides that upon such
termination all of the provisions of the GCC shall continue to apply
for purposes of resolving any dispute
and for purposes of determining
the amounts payable by either the plaintiff or the defendant to the
other of them.
26.
I am of the view that, simply based on the
provisions of the GCC, the defendant has not managed to make out a
case for a finding
that the defendant has an even balance of success
in the main case.
27.
I say the above based thereon that by the
time that the agreement between the parties was cancelled, the time
for the defendant
to invoke the contractual dissatisfaction mechanism
in respect of the initial payment
s
certificate had come and gone
without it being used.
28.
The initial payment certificate was
therefore, by operation of the parties’ own agreed upon dispute
machinery, binding on
the defendant which constitutes the very basis
upon which the plaintiff is entitled to insist on payment and upon
which non-payment
constitutes a breach of the agreement which
justifies cancelation and the institution of a civil claim.
29.
I
would be remiss if I did not refer to
Tubular
Holdings (Pty) Ltd v DBT Technologies (Pty) Ltd
[9]
where
the Court dealt with a very similar provision in respect of
dissatisfaction claims in the Standard FIDIC Conditions of Contract
(“
the
SFCC
”
).
30.
In terms of the dispute resolution
procedures contained in the SFCC, a dispute between parties to the
agreement is to be referred
to a dispute resolution board and in the
event of any party being dissatisfied with the decision of the
dispute resolution board,
such party may, within 28 (twenty-eight)
days give notice of its dissatisfaction.
The
Court held, with reference to further relevant provisions of the SFCC
that if notice of dissatisfaction is not given, the decision
by the
dispute resolution board becomes final and binding.
[10]
31.
I can find no reason why the above cannot
find application to the present matter specifically in view of the
fact that the defendant
agreed, in clause 10.2.2 of the GCC, that if
it did not submit a dissatisfaction claim in respect of the initial
payment certificate
within 28 (twenty-eight) days, it shall have no
further right to raise any dissatisfaction on the said initial
payment certificate.
32.
I consequently hold the view that the
initial payment certificate had become contractually binding after 28
(twenty-eight) days
and in any event before the cancellation of the
agreement.
33.
In view of all of the above, I am of the
view that provisional sentence should be granted and I can see no
reason why the costs
should not follow the result.
Mr. Basson, who appeared
for the plaintiff, argued that costs on Scale “B” should
be appropriate and, in view of the
fact that this matter is
relatively uncomplicated, I agree with his contention.
ORDER
:
34.
In light of the afore-mentioned, I make the
following order:
1.
PROVISIONAL SENTENCE IS GRANTED IN
FAVOUR OF THE PLAINTIFF AGAINST THE DEFENDANT FOR:
1.1
PAYMENT IN THE AMOUNT OF R734 000.54 (SEVEN HUNDRED AND
THIRTY-FOUR THOUSAND
RAND AND FIFTY-FOUR CENTS);
1.2
INTEREST ON THE AMOUNT OF
R734 000.54 (SEVEN HUNDRED AND THIRTY-FOUR THOUSAND RAND AND
FIFTY-FOUR CENTS) A
TEMPORE
MORAE
, CALCULATED FROM 28 JULY
2023 TO DATE OF FINAL PAYMENT; AND
1.3
COSTS OF SUIT ON SCALE “B”
AS REFERRED TO IN RULE 69(7), READ WITH RULE 67A(3) OF THE UNIFORM
RULES OF COURT.
A.D. OLIVIER
ACTING JUDGE
NORTHERN CAPE DIVISION
KIMBERLEY
APPEARANCES
:
For
the Plaintiff:
ADV AA BASSON
On
instructions of:
Thomas Swanepoel Inc.
Tzaneen
c/o
Duncan & Rothman Inc.
Kimberley
For
the Defendant:
MR J MONGALA
On
instructions of:
Morwaagae Attorneys Inc.
Kimberley
[1]
Joob
Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture
[2009]
3 All SA 407
(SCA), par 27
[2]
Harrowsmith
v Ceres Flats (Pty) Ltd
1979
(2) SA 722
(T) at 728
[3]
Froman
v Robertson
1971
(1) SA 115
(AD) at 120
[4]
See
Rule
8(5)
of
the rules
[5]
2011
(3) SA 1 (CC)
[6]
Twee
Jonge Gezellen
,
supra
,
par 70(a)
[7]
Twee
Jonge Gezellen
,
supra
,
par 70(b)
[8]
In this case BMH
[9]
2014 (1) SA 244 (GSJ)
[10]
Tubular
Holdings
,
supra
at 246
to 247