2C Projects CC v Labour Recruitment Specialist CC

• Jurisdiction: South Africa
• Judge: Ntshangase J
• Judgment Date: 22 August 2008
• Docket Number: 7000/2007
• Court: Durban and Coast Local Division
• Hearing Date: 08 May 2008
• Citation: 2008 JDR 1042 (D)

Ntshangase J:

[1]

This is a claim for provisional sentence in the sum of R524 996.01 with interest at the legal rate from 26 October 2006 to date of payment. The claim is made on the basis of an architect's final payment certificate "No. 6" dated 7 June 2007, Annexure "A" to the plaintiff's provisional sentence summons which reflects the "amount due for payment to the contractor," the plaintiff, as R524 996.01 The claim arises from what the plaintiff refers to as "variation orders" which amended the scope of work whose contract price was R2 236 500.00 which, with the inclusion of value added tax, totalled R2 549 610.00 in terms of the "principal building agreement", entered into between the plaintiff and the defendant, for work described as "project light industrial development on Erf 4607, Booth Road, Cato Manor."

2008 JDR 1042 p2

Ntshangase J

[2]

The defendant resists the claim, with reference to Annexure "SS9" to its opposing affidavit. Annexure "SS9" is an architect's final payment certificate "No. 5" dated 5 December 2006 and alleges full payment of the contract price as having been made. The defendant takes issue with the plaintiff's reliance on the architect's final payment certificate of 7 June 2007 on the basis that there cannot be two final payment certificates, one of 7 June 2007 and another of 5 December 2006. The amounts reflected on Annexure "A" to the plaintiff's provisional sentence summons are disputed as neither acceptable nor due, owing or payable by the defendant whose contention is that it has paid the full contract price and R415 701.00 for piling which was regarded as additional work.

[3]

The plaintiff acknowledges receipt of full payment of the contract price but points to the defendant's failure to take account of variations in the scope of work in respect of which the amount of R524 996.01 is now claimed.

[4]

In this matter, on 7 March 2006, the plaintiff and the defendant concluded a written agreement, a copy of whereof is Annexure "SS2" to the defendant's opposing affidavit, in respect of building work to be undertaken by the plaintiff. According to the "certificate of completion", Annexure "SS4" to the defendants opposing affidavit, building works were completed on 26 October 2006.

[5]

While it is not disputed by the plaintiff that it received the full payment of R2 549 610.00 from the defendant, the sum of R524 996.01 is claimed by the plaintiff as the "outstanding amount due by LRS" on Annexure "REP1" to the plaintiff's replying affidavit under the heading" contract summary". Such amount is arrived at

2008 JDR 1042 p3

Ntshangase J

by a reconciliation which takes...