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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2025-026729
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: NO
DATE 28 AUGUST 2026
SIGNATURE
In the matter between:
TSHEPI METALLICS INVESTMENTS (PTY) LTD
(Reg No: 2018/518958/07)
SOPHY EUNICE MPHAKE
And
ESKOM HOLDINGS SOC LIMITED
(REG No: 2002/015527/30)
1st Plaintiff
2nd Plaintiff
Defendant
Heard on: 08 June 2026
2
Delivered on: 28 August 2026
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is electronically circulated to the parties/their legal representatives by
e-mail and by uploading it to the electronic file of this matter on Caselines. The date
for hand-down is deemed to be 28 August 2026.
JUDGMENT
KEKANA AJ
Introduction
[1] Before me in this opposed civil trial is a claim by the Plaintiffs for contractual
damages amounting to R437 920 00 arising out of failure by the Defendant to pay as
per the agreement. The Defendant is opposing the claim, raising exceptio non
adimpleti contractus as its defence.
Background
[2] On December 2023 , the Defendant issued a tender bid under bid number
O[...] for the delivery of certain goods at Tutuka Power Station, Bethal, Mpumalanga.
The Plaintiff was awarded the tender and later on 21 December , Eskom issued a
purchase order with number 4503374896 that mirrored the description of the goods
to be delivered.
[3] The goods that needed to be delivered as per the RFQ were the following:
3.1 ITEM: 00010 - 0707659 CONVERTER: LSIS; I/P 380 -480 VAS; MIL
VSD
3.2 ITEM: 00020 – 0707659 CONVERTER: LSIS; I/P 380-480 VAC; MIL
VSD
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[4] The goods that needed to be delivered as per the purchase order were the
following:
4.1 ITEM: 00010 - 0707659 CONVERTER: LSIS; I/P 380 -480 VAS; MIL
VSD
4.2 ITEM: 00020 – 0707659 CONVERTER: LSIS; I/P 380-480 VAC; MIL
VSD
[5] The goods that were subsequently deliver ed by the Plaintiff were the
following:
5.1 FRECON FR500A-4T-18G/22PH-H.
[6] The Defendant rejected the delivered goods contesting that those goods were
not the ones agreed upon as per the purchase order.
The issue
[7] The crisp issue before this Court is whether the Plaintiffs has delivered as per
the agreement to succeed in its claim for damages.
The Evidence
Plaintiff’s witness
The testimony of Ms Sophy Eunice Mphake
[8] She testified that on the 06 December 2023, her company received a bid
invitation from Eskom by mail for her to submit quotation as per the RFQ. She then
submitted a bid and quotation on 12 December 2023 as deadline for submissions
was 13 December 2023. According to her the description of the goods to which she
quoted and submitted for the above-mentioned bid is FRECON FRSOOA -4T-
18G/22PH-H.
[9] She went on to testify that after submitting her bid, she received an email on
December 20, 2023, from Tshidi Chabedi of Eskom , who stated that she has been
mandated to negotiate 8% to 15% discount as the prices are comparatively higher .
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She further testified that a t th is point , her understanding was that Eskom had no
dispute with the specifications and or the brand but the pricing.
[10] On December 21, 2023, a day after the discount negotiations, she received
another email, this time a formal Purchase Order with full terms and conditions
issued for her company to deliver the goods on a specified date, per the description
of the specifications as stipulated therein.
[11] The Plaintiff testified that the purchase order issued, was according to her a
legal document that communicated a binding agreement, its content and context
created specified legal obligations expected from her company, and that was
adequate for her to conclude that her FRECON technical specification passed the
bid evaluation and adjudication tests as she never deviated from the specification of
the goods from the date of bid submission to the date of discount negotiations.
[12] She went on to testify that on 8 January 2024, she prepared a technical data
sheet which she sent to Ms Tshidi Chabedi to confirm . Same was forwarded to Mr
Cedric Gumede by Ms Chabedi and Mr Gumede had no issue with specifications but
disputed the brand. Ms Chabedi on the same emails exchange, questioned Mr
Gumede as to why at such an advanced stage would he mention a brand as a
requirement of this bid. She also testified that she then proceeded with the delivery of
the goods to a specified destination as the p urchase order was not revoked by the
Defendant despite the internal conflict among Eskom representatives as to the
description of the specification and the brand.
[13] During cross examination, and relying on the terms of the purchase order,
counsel for the Defendant asked the witness if she obtained approval fr om Eskom to
vary or to modify the terms of the agreement. The witness’s response was that no
approval was sought and consequently no approval was granted from Eskom to vary
or modify the terms of the purchase order.
or modify the terms of the purchase order.
The Defendant’s witnesses
The testimony of Mr Ryan Hector
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[14] He testified that he is an engineer at Eskom, testified that Eskom is unable to
use the F RECON goods delivered without modification and that the delivered
FRECON goods were not fit for purpose. He further testified that the brand required
by Eskom, is LSIS as described in both the RFQ and the purchase order. He went on
to testify that LSIS is the brand and S100 is a specification . He went on say that
while FRECON has the same specification of S100, for Eskom to use it, it has to be
modified and that will have huge financial implications on the part of Eskom. But
FRECON in its current form cannot be used unless modified.
The testimony of Cedrick Gumede
[15] He testified that he an electrical senior supervisor who is responsible for the
procurement of the goods on behalf of Eskom , and he guides the buyers within the
supply chain system on the description and specification of goods to be procured.
According to him the said c onverters as described in the RFQ and the purchase
order are already in use at the plant, and the buyers makes purchases using th ose
specification. According to him FRECON goods delivered by the Plaintiffs cannot be
used and he went on to corroborate the testimony of the Eskom engineer that LSIS
is the brand and S100 is a specification and the two are described on the RFQ.
[16] He further testified that the buyer for Eskom, Tshidi Chabedi, has no authority
or discretion to deviate from the description of the goods as requested by the
relevant department.
Submissions by parties
The parties’ submissions can be summarised as follow:
[17] The Plaintiff submits that since the goods to which she quoted and submitted
for the above -mentioned bid was FRECON FRSOOA -4T-18G/22PH-H, Eskom
should not have negotiated the discount on the pricing if they were not happy with
the goods to be supplied. Additionally, Eskom issued the purchase order
immediately after the negotiations regarding the price. The plaintiffs further submits
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that the purchase order issued but Eskom constituted a binding agreement between
Eskom and the Plaintiffs.
[18] The Defendant contends that while the Plaintiffs delivered goods to Eskom,
the delivered goods were not the ones agreed upon and Eskom is therefore correct
by law to reject the incorrect delivered goods. That the delivery of the wrong good s
constituted positive malperformance. The Defendant further contends that there was
no consensus or approval granted by Eskom to the Plaintiffs warranting deviation
from the goods described in the purchase order , that the principle of exceptio non
adimpleti contractus applies.
Legal principle and analysis.
[19] The evidence presented before this Court, is that the LSIS is a brand and
S100 is a specification, this position remains uncontested. The R FQ specified LSIS
as the goods to be delivered. The second plaintiff submitted and quoted FRECON
brand as goods she will deliver. FRECON also has S100 as a specification.
[20] There were price negotiations betwee n the second Plaintiff and Eskom
through Ms Chabedi. After these negotiations a purchase order was issued. The
purchase order specified and d escribed the goods to be delivered and LSIS was
specified as the goods to be delivered. The Plaintiffs did not get any approval from
Eskom for variation nor modification of the terms of the agreement. There was no
evidence before this Court to suggest that there was approval for deviation of what
was described in the R FQ nor in the purchase order. Even after receiving a
purchase order which had LSIS as the goods to be delivered, and not FRECON as
submitted by the Plaintiffs, the second Plaintiff did not request correction of the
purchase order so it can reflect FRECON. Also, before me is the evidence that
Annexure 9 (the FRECON specification) was sent to the Defendant on 8 January
2024, days after the purchase order was issued.
[21] Upon perusal of the general condition of purchase, clause 4 thereof which
[21] Upon perusal of the general condition of purchase, clause 4 thereof which
deals with ‘delivery’ states that:
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“delivery means delivery of goods or completion of work (if any) in compliance
with the terms and conditions of the agreement …no payment shall be made if
the supplier does not provide goods/services/works as stated in the
agreement”1
[22] The purchase order itself contains certain clause or terms, central to these
terms is that there has to be approval from Eskom in the event of any variation or
modification by the supplier.
[23] Counsel for the Plaintiffs agrees that prior to the purchase order being issued,
there is no agreement. The agreement commences on the issuance of the purchase
order. I agree with the posture by the Plaintiffs’ counsel, where we differ is the
implication of the posture. The key question is, what was in that agreement and
subserviently, whether the plaintiffs delivered as per that agreement.
[24] I am of the view that it would mean that any discussion prior to the purchase
order is not part of the agreement. This would include the pricing negotiation
between the second Plaintiff and Ms Chabedi unless those are now included in the
agreement. Additionally, the discussion s between the second plaintiff and Ms
Chabedi only dealt with the pricing of the goods and nothing about the description of
the goods. The discussion never addressed anything about the brand or the
specifications of the goods. After all it is the second plaintiff who stated that Ms
Chabedi informed her that she was mandated to negotiate the pricing. Ms Chabedi
did not claim any other mandate . The conclusion is strong that as regards the
description of the goods the description as contained in the R FQ remains
unchanged.
[25] If counsel for the Plaintiffs is correct is his argument that the issuance of the
purchase order created a binding agreement, then there is no agreement prior to the
purchase being issued. Any discussions are irrelevant or at least not binding on the
parties. The parties are bound by the agreement ‘the purchase order’. All parties
parties. The parties are bound by the agreement ‘the purchase order’. All parties
must deliver as per the terms of the purchase order which is the agreement.
1 Eskom’s General conditions of purchase “Annexture 15”
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[26] I am of the view that like any contract there has to be acceptance of the terms
and if the argument by counsel for the Plaintiffs is correct then the supplier accepted
the terms in the agreement, those terms were to deliver LSIS as the goods.
Otherwise, the Plaintiffs ought to have sought a formal written amendment, often
called a "Change Purchase Order" to reflect FRECON as goods to be delivered.
[27] I agree with the defendant’s counsel and his reliance on the principle exceptio
non adimpleti contractus and meaning thereof that a person cannot enforce
performance from the other under that contract unless that same person has
performed their obligations or at least tendered proper performance. What I will not
wish to entertain is the submissions on the degree of non -performance. To me the
fact that the goods delivered cannot be used in their current form is enough to render
the delivery materially defective .2 Evidence before me which remains unchallenged
is that they will have to be modified and for that reason the Plaintiffs has not
delivered the goods as per the agreement and consequently the Plaintiffs has not
performed their obligations as per the agreement.
[28] The Plaintiffs has failed to show this Court that Eskom accepted the delivery
of FRECON goods in fact there were issues raised by Mr Gumede prior to delivery
and the second Plaintiff was aware that Eskom had an issue with the brand.
Assuming the Plaintiffs send the FRECON specifications were sent to Eskom before
the purchase order was issued, the issuance of the purchase order by Eskom on a
later date with LSIS as the goods to be delivered will be tantamount to a rejection of
what the supplier was offering to deliver.
[29] I disagree with counsel for the Plaintiffs that Eskom bore the responsibility to
clearly state that no equivalent product may be delivered, in fact the purchase order
is clear who bore this responsibility. According to the purchase order Eskom has to
is clear who bore this responsibility. According to the purchase order Eskom has to
approve any deviation, variation or modification of any goods, this means that the
supplier is the one who must seek approval from Eskom if he intends to deviate, vary
or modify the terms of the agreement. The only time Eskom will be aware of any
2 Radiotronics (Pty) Ltd v Scott, Lindberg & Co [1951] 1 All SA 106 (C) at p. 121
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variation or modification will be only when a supplier seeks Eskom’s approval
otherwise Eskom will be correct to assume that the supplier will deliver as per the
agreement.
Conclusion
[30] This Court concludes that the Plaintiffs did not perform as per the agreement
which is the purchase order . The delivered goods were not as described in the
purchase order. The goods delivered were not those agreed upon by the parties at
least by Eskom. There was no approval for variation or modifications of the
description of the goods to be delivered. Eskom was within their rights to reject the
delivered goods.
[31] This is a classic case of ‘positive malperformance’ which occurs when a party
to a contract does perform their obligation, but the performance is defective,
improper, or contrary to the terms of the agreement . The defect is so material in that
the goods cannot be used in their current form, they ought to be modified and as
such it is the court’s conclusion that t he Plaintiffs did not carry out their obligation as
per the terms of the purchase order and consequently their claim for damages is
unfounded and cannot to be sustained.
Order
[32] In the circumstances, the following order is made:
1. The Plaintiffs’ claim is dismissed.
2. The Plaintiffs are to pay the costs on a party and party scale, scale A.
ND KEKANA
ACTING JUDGE OF THE HIGH COURT
Appearances:
10
Counsel for the Plaintiffs: Ntsane Thoma Sefatsa
Instructed by Ntsane Sefatsa & Associates Inc
Counsel for the Defendant: Johannes Jacobus Van Der Merwe
Instructed by Haasbroek & Boezaart Inc