IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Case no: 14246/2018
In the matter between:
PLUMINEX (PTY) LTD
PLAINTIFF
AND
ST JOHANNIS ORGANISATION DEFENDANT
Coram: Justice J Cloete
Heard: 10, 11, 12, 24 February 2026, 13 April 2026, 4 June 2026
Delivered electronically: 20 August 2026
ORDER
1 The plaintiff’s claim is dismissed.
2 The plaintiff shall pay the defendant’s costs on scale B (party and party), and
including the costs of counsel.
JUDGMENT
Cloete J:
Introduction and relevant background
[1] This is an action in which the plaintiff claims payment from the defendant
of R3 518 976.58 plus interest and costs on the scale as between attorney and
client. After various amendments to both parties ’ pleadings, abandonment
during argument of one special plea , and an agreement reached in respect of
quantum in the event of entitlement to the full amount of the claim being
proven, the only issues for determination are whether: (a) a written service
agreement (contract), squarely relied upon by the plaintiff , is enforceable; and
(b) if so, the plaintiff is nonetheless limited to receiving payment of
R1 255 024.15 as reflected in a written cession agreement dated 19 June 2020.
[2] The plaintiff sues in its capacity as cessionary of the claim of
International Utility Brokers (Pty) Ltd (since placed in liquidation) . The latter
entity was previously Greystone Trading 1237 CC trading as International
Utility Brokers (Greystone), until it was converted on 14 December 2016. At
all material times, Mr Gerrit Germishuys represented it in its dealings with the
defendant. For convenience I will refer to Greystone and International U tility
Brokers (Pty) Ltd collectively as ‘IUB’. The plaintiff is effectively the ‘new’
IUB.
[3] IUB conducted the business of utility auditing. This involved providing a
service to clients in respect of their utility bills invoiced by local authorities ,
with the specific purpose of identifying billing errors as well more favourable
tariffs, to achieve cost saving s for the client. The defendant is a non -profit
organisation which conducts business as a large retirement facility in Parow, a
suburb of Cape Town.
[4] During the trial Mr Germishuys, Mr Nieuwoudt Heerschap, IUB’s
director at the time, and the attorney who drafted the cession , Mr Gabriel
Jordaan, testified for the plaintiff. The def endant called two witnesses, namely
Mr Otto Gerntholtz, the current chairperson of the defendant’s management
committee, and who was also a committee member at the time the contract was
allegedly concluded with IUB , and Sister Marina Basson, whose signature
appears on the contract and other documents.
[5] However, this case is unusual in the sense that , as will be seen from what
follows, the testimony in chief of the plaintiff’s first and pivotal witness, Mr
Germishuys, was destructive of the essential elements of its own pleaded case.
There is accordingly no point in dealing at any len gth with all th e other
evidence presented during the trial.
[6] The contract upon which the plaintiff relies was signed on 7 June 2017 by
Mr Heerschap and Sister Basson above the words “properly authorised”. The
relevant provisions of the contract are as follows:
“5.1 Clause 1: the defendant appointed IUB to audit its utility accounts , which included the
compilation of a report, highlighting specific cost savings and recommendations in monetary
value, and presentation thereof to the defendant;
5.2 Clause 2: the contract period was 4 years , commencing when IUB’s recommendations
were implemented by it for the defendant, with the utility accounts to be audited monthly by
IUB;
5.3Clause 3: the defendant was under no obligation to accept IUB’s recommendations , but if
accepted, IUB would be entitled to 35 % of any resultant savings to the defendant, to be
invoiced at the end of each month and payable within 30 days; and
5.4 Clause 5.3: the contract ‘and all the annexures hereto’ contained the entire agreement
between the parties, and neither party would be bound by any undertakings, representations,
warranties, promises or the like not recorded therein.”
[7] On the same date Sister Basson signed both a “negotiation mandate” and
“schedule of instruction ” in favour of IUB. They reflect that she did so in her
capacity as general manager on behalf of the defendant . Mr Heerschap later
signed the negotiation mandate on behalf of IUB. On 9 June 2017, Sister
Basson also signed a document (s) authorising IUB to access the defendant’s
records with the local authority.
Summary of the amended pleaded cases
[8] The plaintiff pleaded that the contract was concluded on 7 June 2017
between IUB, represented by Mr Germishuys and the defendant, represented by
Sister Basson. After the contract was signed, Mr Germishuys conveyed IUB’s
recommendations to the defendant, which were accepted by Sister Basson on its
behalf. The plaintiff alleged that she also instructed IUB to proceed to
implement the recommendations, as a result of which the parties, represented as
aforesaid, also signed the negotiation mandate , which authorised IUB to
negotiate on the defendant’s behalf with the local authority. On 9 June 2017,
Sister Basson signed the local authority document(s).
[9] The defendan t pleaded the following defences. First, Sister Basson
signed the contract in the mistaken belief “that she was entitled to sign … and
that in any event there would first be recommendations made , which had to be
agreed to by the defendant before the services to be provided by IUB were to
commence”. The defendant also alleged that Mr Germishuys did not convey
any recommendations to the defendant on 7 June 2017 but only on
28 June 2017.
----
[10] Second, Sister Basson was not authorised to sign because: (a) decisions in
respect of contractual obligations “of this nature ” are taken by the defendant’s
management committee; (b) she was only, as general manager, responsible for
the day -to-day operational management of the old age home and frail-care
divisions of the defendant, including the management of nursing, administration
and human resources , but did not sign contracts with suppliers without prior
budget approval or express authority from the management committee ; and (c)
the contract was only tabled at the management committee meeting on
20 June 2017 and was not accepted or approved by it.
[11] The defendant also relied on its constitution in this regard; and further
pleaded that Mr Germishuys knew, or ought to have known , that the defendant
is a non-profit and public benefit organisation with a governing body which has
authority to enter into such contracts, and also that the defendant only employs
“consultants” for reasonable remuneration and must ensure that a fee structure
meets this requirement.
[12] Third, after having met with the defendant’s representatives on
28 June 2017, and having been informed that the committee did not approve
IUB’s fee structure, Mr Germishuys presented an “amended contract ” with a
reduced fee of 25% , but was informed during July 2017 that IUB should not
commence rendering services, and on 1 August 2017 that the defendant “did not
consider the contract binding ”. The defendant, which has not paid a single
invoice issued by IUB, denied that , in the circumstances , it is indebted to the
plaintiff in the amount claimed or at all.
[13] In its replication, the plaintiff pleaded that in the event of the court
finding that Sister Basson was not duly authorised, the defendant is estopped
from denying such authority by virtue of the following : (a) Sister Basson was
general manager and indicated that she had authority to conclude service
general manager and indicated that she had authority to conclude service
agreements on the defendant’s behalf; (b) the general manager of a facility such
as that of the defendant usually has the authority to conclude such agreements;
(c) by appointing her as general manager and permitting her to conduct the
business of the facility as she did, the defendant represented to third parties
wishing to enter into such a contract with the defendant that Sister Basson
would be the authorised person with whom to negotiate and conclude s ame; (d)
‘acting as aforesaid’ the defendant made such representation to IUB ; and (e)
acting on the belief of the correctness of such representation , IUB was induced
to do so to its detriment.
[14] The plaintiff admitted that a meeting was held on 28 June 2017, but
pleaded that this was in respect of settlement negotiations after a dispute was
raised in relation to the 35% fee , and as such privileged. It was further alleged
that the cost saving s report furnished by Mr Germishuys to the defendant’s
management committee on 28 June 2017 contained exactly the same
recommendations as those provided on 7 June 2017.
[15] From the plaintiff’s pleadings, and the terms of the contract itself, there
were thus two foundational pillars which the plaintiff was required to prove in
order to discharge its onus that an enforceable contract came into existence with
the defendant. First, that Sister Basson was either duly authorised by the
defendant to conclude it on her own , or that by virtue of the position she held
with the defendant, the latter was estopped from denying her authority to do so.
Second, that at the meeting of 7 June 2017, Sister Basson not only accepted, but
also instructed, IUB to implement its recommendations.
[16] The importance of pleadings should not be underestimated. This has
been repeatedly stated by our courts , and was aptly encapsulated by the
Constitutional Court in SATAWU and Another v Garvas and Another 1 as
follows:
“Holding parties to pleadings is not pedantry. It is an integral part of the principle of legal
certainty which is an element of the rule of law, one of the values on which our Constitution
is founded…”
is founded…”
1 SATAWU and Another v Garvas and Another 2013 (1) SA 83 (CC) para 114.
The relevant evidence in support of the plaintiff’s pleaded case and
evaluation thereof
[17] Mr Germishuys testified as follows. In 2017 , IUB had a number of
retirement facility clients. He had previously approached the defendant during
2012, and was given access to its local authority records , seemingly under a
written mandate. After conducting research, he reported back to the defendant,
but it was not interested in IUB’s services at that stage.
[18] He again approached the defendant in 2017 , during the time of water
restrictions due to the ongoing drought in the Western Cape. He still had access
to its records as a result of the 2012 mandate , and considered this to be a
mutually beneficial opportunity since higher water tariffs were being imposed
by the local authority. He made a ‘cold call ’ at the defendant ’s premises on
2 June 2017. He met with Ms Lindy L a Grange and explained to her what IUB
could offer by way of utility auditing. He asked for the manager’s details,
which Ms Le Grange provided in the form of Sister Basson’s business card.
[19] He telephoned Sister Basson the following day . Again, he explained
what IUB could offer and requested a meeting. Sister Basson responded that
she would need to speak to either the treasurer or head of the finance committee
(he could no longer recall which) in order to set up a meeting. The meeting
took place on 7 June 2017. Present, along with himself, were Sister Basson, Ms
La Grange (who he came to learn was the defendant’s bookkeeper) and Mr Uwe
Voigt, the head of the finance committee.
[20] By the date of the meeting he had obtained from the local authority the
defendant’s previous 12 months consumption figures for water and electricity.
Based on that information he had already prepared a composite cost savings
report to be presented to the defendan t’s three representatives at the meeting ,
where he explained to the m why the utility bills had increased , as he put it,
“exponentially”. Thereafter he presented them with a copy of the draft contract
with IUB and explained its terms to them.
[21] He was ref erred to two cost saving s reports, one dated 27 June 2017 (for
water) and the other dated 28 June 2017 (for electricity) which apparently
comprised one comprehensive report. According to him, although the dates
were different to that presented at the 7 June 2017 meeting, they were in fact the
same. His explanation was that the dates of the se reports were automatically
updated when they were pr inted again for purposes of the 28 June 2017
meeting. The composite report allegedly bearing the date of 7 June 2017 was
not discovered by either party.
[22] Mr Germishuys ’ evidence was further that the composite cost savings
report (which also contained recommendations) was presented to the
defendant’s representatives at the same time as the proposed contract on
7 June 2017. This changed when he stated that he first presented them with the
draft contract , and only once it was signed, the composite cost saving repor t,
followed by the negotiation mandate and schedule of instruction , the latter
because the local authority “occasionally requires” an updated instruction.
[23] Crucially however, he testified that Sister Basson only signed the contract
after she asked Ms L a Grange and Mr Voigt if they were in agree ment that she
could, or should , do so : “Sister Basson asked the other two people present that I
mentioned earlier as well if they are in agreement for her to sign the service agreement. All
three of them agreed … and the service agreement was signed, and then this cost -savings
report was presented to them, to the three of them present at that meeting”.
[24] He later repeated this as follows : “She asked then are you guys in agreement
that we sign this service agreement? That was now Lindy La Grange and Uwe Voigt that was
also present at the meeting … they said yes… and she signed the service agreement ”. (Mr
also present at the meeting … they said yes… and she signed the service agreement ”. (Mr
Heerschap, who was not present, appended his signature at IUB’s offices in
Somerset West later the same day , and this appears to be the extent of his
involvement in relation to the contract itself).
[25] This evidence goes directly to the first foundational pillar of the
plaintiff’s pleaded case , namely that Sister Basson was authorised, without
reference to anyone else, to conclude a valid and binding agreement on the
defendant’s behalf, alternatively that the defendant was estopped from denying
this, given her position as general manager . In complete contradiction, it was
the testimony of Mr Germishuys himself that Sister Basson: (a) informed him
that she required permission from other representatives of the defendant (Ms La
Grange and Mr Voigt) to engage with him at all ; and (b) did not sign anything
before asking them whether she could do so. This evidence is destructive of
that pillar.
[26] When asked what he had explained about savings at the 7 June 2017
meeting, given that he only presented the cost savings report once Sister Basson
had signed the contract, Mr Germishuys replied: “I told them we are in p ossession of
the cost savings report that will indicate a clear saving … or clear saving as to how the
savings can be achieved ”, but that the contract would have to be signed before he
would disclose its contents.
[27] Despite his testimony in chief that Sister Basson needed the consent of
both Ms La Grange and Mr Voigt for her to sign the contract, Mr Germishuys’
evidence was that it was only during the later meeting with the defendant’s
management committee on 28 June 2017 that he heard, for the first time, that
Sister Basson was not authorised in her sole discretion to sign the contract on
the defendant’s behalf. He later contradicted himself:
“My understanding was of my meeting which was held on 7 June , that the people
representing St Johannis Organisation had the authority to sign. Especially the fact that Sister
Basson was not alone in signing …our service agreement, two other people were present. She
consulted them before signing it. All three of them were in agreement …So according to
myself and [IUB], the service agreement was in place.”
[28] He was referred to a report prepared by Sister Basson on 19 June 2017 for
purposes of the defendant’s manage ment committee meeting to be held on
20 June 2017, in which the following appeared:
“IUB-International Utility Brokers
Work in three different phases in order to achieve savings:
1. Firstly, they do an audit of the utility accounts … in order to determine if
the client has been charged correctly in the past.
2. Once this has been com pleted, IUB will check if the client is on the most
optimal tariff available for the particular accounts.
3. Lastly, they can make technical recommendations regarding operational
equipment in order to reduce usages.
If they find that a more optimal tariff is available, they will compile a savings report
which is then presented to us, which they did. If we accept IUB’s recommendations ,
we and IUB share in savings and or refunds exclusively resulting from these
implementations for a set amount of time. In the event we decide not [to] accept any
of IUB’s recommendations, we are under no obligation to do so and therefore do not
owe anything to IUB.”
[my emphasis]
[29] When asked to comment on the above, Mr Germishuys replied:
“This is basically a summary of our meeting that we had when I presented the cost-savings
report. She basically translates everything that was conveyed to her together with the cost -
savings report as to how IUB goes about our business, what has happened up to this
particular date, and the recommendations that we have made, plus where those
recommendations currently stand , plus what will happen if those recommendations are
implemented …” [my emphasis]
[30] Mr Germishuys’ evidence on this score was thus also destructive of the
second foundational pillar of the plaintiff’s pleaded case. As set out above, the
plaintiff had specifically pleaded that at the meeting of 7 June 2017, Sister
Basson had both accepted the recommendations and instructed IUB to
Basson had both accepted the recommendations and instructed IUB to
implement them. On Mr Germishus’ own version under oath, she had not done
so.
[31] Moreover, the minutes of the meeting of the defendant’s management
committee meeting of 20 June 2017, to which Mr Germishuys was also referred,
supports the defendant’s assertion that no enforceable contract was concluded.
The minutes read in relevant part that:
“4.2 IUB: company that specialises in assisting companies with municipal bills and
proposing cost reductions was discussed.
Concern was expressed by MC members over the 4 years contract during which IUB would
share 35% of the savings. This would mean a sizeable amount which could be saved if either
a once-off payment would be made or direct representation by the St J Or g. would be done at
the municipal authorities.
It was agreed that J.H. will look into finding an alternative to dealing with municipality that
does not entail the costing that would be incurred by IUB.”
[32] Mr Germishuys himself commented that: “Okay, in a nutshell it would seem
that this – that the proposal was presented and discussed with the MC O. I assume that is the
management committee members. And they decided that they would rather try to negotiate
with the municipality on their – to do it themselves”. [my emphasis]
[33] He was also referred to an email sent to him on the day after that meeting,
i.e. 21 June 2017, in which Ms Heike Nel of the defendant, writing on behalf of
Sister Basson, informed him that: “She has asked for our agreement to be put on hold ,
as it is currently under discussion with the board of the organisation …”. He confirmed
that a meeting was then arranged for 28 June 2017 in which IUB and the
defendant attempted to reach agreement, particularly in relation to the 35% fee
proposed, but nothing came of it. (It was at the same meeting that, according to
him, he also presented the same cost -savings report to the representatives of the
defendant.)
[34] It is against this testimony that all the evidence of the steps allegedly
taken by Mr Germishuys thereafter in relation to cost savings for the defendant
taken by Mr Germishuys thereafter in relation to cost savings for the defendant
could not, and did not, advance the plaintiff’s case. The plaintiff’s claim was
based upon an enforceable contract , not enrichment of the defendant at its
expense. It was for the plaintiff to prove that such a contract came into
existence. Regrettably fo r the plaintiff, the testimony of their pivotal witness,
Mr Germishuys, demonstrated the contrary.
[35] For sake of completeness I will touch on other parts of his evidence since
they are relevant to credibility . In cross -examination Mr Germishuys, in
response to a question from the court , altered his version once again . He
claimed that acceptance of IUB’s recommendations occurred by signature of the
negotiation mandate and the document(s) for the local authority . This too
changed when he answered, in response to questions by counsel for the
defendant, that it was the signature of the negotiation mandate, schedule of
instruction and the local authority document (s) which constituted acceptance of
the recommendations. He conceded however that the contract itself made no
mention of this. Moreover, there are no annexures to the contract and , as
previously stated, clause 5.3 expressly recorded that its terms were the sole
memorial of the contract between the parties.
Brief overview of the other evidence
[36] Mr Heerschap testified in relation to the corporate history of IUB , its
general business modus operandi , its liquidation , and how the cession came
about. This evidence did not impact on the plaintiff’s case concerning the
allegedly enforceable contract with the defendant, which was fact specific , and
in respect of which Mr Heerschap confirmed he had no direct involvement. Mr
Jordaan testified about the cession, but given the evidence of Mr Germishuys, it
is not necessary to consider whether the plaintiff’s claim is limited to the
amount reflected therein.
[37] Mr Ger ntholtz gave evidence about how decisions such as the contract
with IUB had to be taken at management committee level. This would have
been relevant if the plaintiff had advanced a cogent and potentially sustainable
case in respect of an enforceable contract , but it did not. It was also of no
assistance to the plaintiff to attempt to construct a cas e through cross -
examination of Mr Gerntholtz on issues about which he clearly had no direct
knowledge, or which amounted to propositions of law.
[38] Sister Basson testified that at the time she signed the contract she was
employed as the defendant’s nursing services and general manager. She did not
make what she called “financial decisions ”. In her understanding she was
involved in such decisions, but she prevaricated, first stating that such decisions
were made by the bookkeeper and the tre asurer, and subsequently that generally
speaking: “Decisions were made always through the chairperson . I can also have input,
mainly it goes through the chairperson and then it goes to the board for further discussion and
the board is the management committee members ”. She confirmed that she was
required to submit a written report on items for discussion at management
committee meetings.
[39] Sister Basson had almost no independent recollection of what had
transpired in relation to the contract , given the passage of time (of some 9
years). Her employment with the defendant had also since terminated under
seemingly fraught circumstances. What she could independently recall was that
at the meeting of 7 June 2017 it was discussed “how much we can save, how
much they can save on the water issue ”, but not that she had been presented
with any cost savings report.
[40] Sister Basson confirmed that her signature appeared on the contract and
other documents. Her evidence was first that she had assumed she had authority
to sign them since a board member, the treasurer Mr Voigt, had been present.
When asked what she thought would happen thereafter, she replied: “Well as this
is the first meeting I mean surely they [IUB] should go and investigate all our documents
is the first meeting I mean surely they [IUB] should go and investigate all our documents
from the municipal accounts to show what they had to offer before we can proceed”.
[41] When asked in cross examination about her assumption that she was
authorised to sign, she responded: “[it] was that if the board member is present and it is
your treasurer that it would be right to start off by signing for them to start the
investigation…”. However, she then testified that she did not recall discussing the
contract with anyone before she signed it, and to her “it made no sense” that she
would have , but immediately thereafter she said that she would not have
decided to sign anything on her own , and there probably would have been a
discussion with Mr Voigt before signing. After the court requested
clarification, she responded that : “Maybe I was wrong. Can I rephrase my answer …
surely there was a meeting so we had to talk, so there probably was a discussion”.
[42] She was asked about the reference in her report to the management
committee that a cost savings report had been presented at the meeting with Mr
Germishuys. She replied that if she had received one she would have attached it
to her report , and that she must have incorrectly worded it: “My sentence is
wrong”. She also testified that at the time of preparing and submitting her
report to the management committee her understanding was that the contract
“was still open for acceptance”.
Summation
[43] During argument it was submitted on behalf of the plaintiff that, because
it was undisputed that Sister Basson’s signature on the contract appeared above
the words “properly authorised”, and that she was general manager at the time,
this constituted prima facie evidence that she was indeed authorised. It was also
submitted that this placed an evidentiary burden on the defendant to adduce
evidence in rebuttal (and which it had not discharged).
[44] I disagree. In my view th is fundamentally misconstrues the evidence of
Mr Germishuys, with which I have already dealt in some detail , and which
contradicted the essentials of the plaintiff’s pleaded case. There was no
evidentiary burden on the defendant to assist the plaintiff by plugging the holes
in his testimony.
[45] The same applies to the submissions made concerning “acceptance” of
the recommendations and the consequent enforceability of the contract. At best
for Mr Germishuys he did not know what constituted acceptance , since he gave
various different versions, whi ch I have also dealt with above ; but more
particularly, he confirmed , with reference to the defendant’s own documents,
that upon conclusion of the meeting of 7 June 2017 no recommendations had
been accepted by the defendant. The contract is clear on this score – only once
the recommendations were accepted would an enforceable contract come into
existence, and there is no evidence that the defendant subsequently accepted
them.
Conclusion and costs
[46] Having regard to the aforegoing, the plaintiff’s claim must fail. There is
no reason why costs should not follow the result. Counsel for the plaintiff
sought costs on scale C as an alternative to attorney and client costs in the event
of the plaintiff succeeding. Counsel for the defendant asked for costs on scale
C, alternaively on scale B. I do not believe that costs on scale C for a matter of
this nature is warranted. Costs of the amendment applications during the trial
were ordered to be costs in the cause, so they too follow the result.
Order
[47] The following order is made:
1 The plaintiff’s claim is dismissed.
2 The plaintiff shall pay the defendant’s costs on scale B (party and
party), and including the costs of counsel.
_____________________________
J I CLOETE
JUDGE OF THE HIGH COURT
Appearances
For plaintiff: Mr J Tredoux
Instructed by: Jordaan & Ferreira Inc
For defendant: Mr D van Reenen
Instructed by: Hildebrand Attorneys