AmandlaGCF Construction CC v Tresso Developments (Pty) Ltd and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Hofmeyr AJ
• Judgment Date: 17 August 2023
• Citation: 2023 JDR 3102 (WCC)
• Hearing Date: 16 August 2023
• Docket Number: 11087/2022

Hofmeyr AJ:

Introduction

1

Between October and December 2021, the applicant conducted earthmoving works on a property in Wellington, Western Cape. The property is owned by the first respondent, Tresso Developments (Pty) Ltd.

2

The applicant thought it had a contract with Tresso to conduct the works. But when it asked for payment, none was forthcoming.

3

It then sent a demand to Tresso under section 345 of the Companies Act 61 of 1973. In response, Tresso denied that it had any contract with the applicant and said that it was not liable on any basis to the applicant. It then went on to explain that what appeared to have happened is that the third respondent, Mr Anton Oberholzer, had presented himself as a representative of Tresso, when he was not one.

4

In a subsequent letter, Tresso further explained that Mr Oberholzer was, in fact, the representative of the fourth respondent, JIWT Developments (Pty) Ltd, and that JIWT Developments had been trying to buy the shares in Tresso for some time but the sale of shares agreement between the shareholders of Tresso and JIWT Developments had fallen through. It then said that it had managed to establish that Mr Oberholzer had been holding himself out as a representative of Tresso and purporting to negotiate on behalf of Tresso when he had no authority to do so. The second letter concluded on the basis that the applicant’s claim lay against Mr Oberholzer and/or JIWT Developments and any attempt by the applicant to sue Tresso would be opposed.

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5

The applicant clearly did not accept Tresso’s denial of liability and so launched proceedings against Tresso, Mr Oberholzer, JITW Developments and the Engineer on the works, Deca Consulting Engineers CC.

6

It did so on motion. I shall refer to the application it launched as “the main application”. The notice of motion claimed R1,553,682.17 from Tresso, alternatively the Engineer. The quantum was made up by the amounts in four payment certificates that had been issued by the Engineer. Quite remarkably, despite citing Mr Oberholzer and JITW Developments as the third and fourth respondents respectively, the applicant claimed no relief against them. It said that it was citing them for “any interest they may have in the proceedings”.

7

The founding affidavit set out a case of an alleged written contract that was entered into between the applicant and Tresso. In the alternative to the written contract, the applicant claimed that either “a valid agreement came into being, on the same terms and conditions of the Contract, but for the fact that it was tacitly concluded” or such contract was ratified by Tresso.

8

The claim against the Engineer was pursued in the alternative to the claim against Tresso and was based on an alleged breach of an implied warranty of authority.

9

There was also one sentence in the founding affidavit to the effect that if the contractual claim against Tresso was not upheld, then Tresso was “unjustly enriched in the equivalent amount as that set out in the payment certificates”.

10

It is well established in our law that an application may be dismissed with costs when the applicant should have realised when launching the application that a serious dispute of

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fact was bound to develop. [1] The court has a wide discretion when it determines such a matter. [2]

11

Tresso opposed the main application and filed an answering affidavit consistent with the line it had taken in the prior correspondence. It said there was no contract between it and the applicant. It said none of its directors lived near the property on which the works had been undertaken and that it did not know about the earthworks until after they had been completed. It emphasised, again, that any claim the applicant may have would lie against Mr Oberholzer and JITW Developments. It took issue with the fact that the case had been brought on motion when the applicant clearly knew there was a material dispute of fact prior to launching the case.

12

In response, the applicant did not file a replying affidavit. Instead, it brought an application for a referral to oral evidence. It also sought to amend its notice of motion to pursue an alternative claim against Mr Oberholzer and JITW Developments. However, it did not seek to file any further affidavit despite the fact that the existing founding affidavit did not set out any factual basis for a claim against Mr Oberholzer or JITW Developments.

Referral to oral evidence

13

The applicant’s referral application asks for the following issues to be referred to oral evidence:

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13.1

whether Tresso expressly or tacitly agreed to, or ratified the contract referenced at paragraphs 13 to 19 of the founding affidavit and/or any other agreement which relates to the works conducted by the applicant;

13.2

whether Tresso expressly or tacitly mandated or ratified the Engineer acting as its representative in respect of the Engineer’s interactions with the applicant;

13.3

whether Tresso should be held liable for the applicant’s claim; and

13.4

if the answers to the questions above were in the negative, whether the Engineer, Mr Oberholzer or JITW Developments should instead be held liable for the applicant’s claim.

14

Tresso opposed the referral to oral evidence. It seeks the dismissal of that application, as well as judgment in its favour in the main application.

15

The remaining respondents – the Engineer, Mr Oberholzer and JITW Developments have not opposed either the main application or the referral application.

16

The issues before me at this stage of the proceedings are twofold:

16.1

whether to grant the application for the issues identified by the...