Barloworld Equipment (Pty) Ltd v ZED Quarrying (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Ntshangase J
• Judgment Date: 28 October 2008
• Docket Number: 6656/08
• Court: Natal Provincial Division
• Hearing Date: 28 July 2008
• Citation: 2008 JDR 1357 (N)

Ntshangase J:

[1]

This is an application for summary judgment pursuant to a summons in which 'claim A' is for payment of R336 237.15 for repair services rendered and parts associated with the first defendant's construction plant, sold and delivered to the first defendant and, 'claim B' the sum of R8363.73 in respect of hire services of construction equipment to the first defendant "(d)uring or about April 2006 until January 2008", at first defendant's special instance and request. The liability of the second defendant arises from his alleged suretyship for the debts of the first defendant to a limit of R200000.00.

[2]

The defendants deny liability and resist the granting of summary judgment on the grounds that –

(i)

R45000 as part of the plaintiff's 'claim A' is at variance with the agreed cost of repairs and is claimed when the plaintiff had failed to comply with its contractual obligations. The plaintiff's claim is for defective workmanship.

2008 JDR 1357 p2

Ntshangase J

(ii)

R234000 of the plaintiff's 'claim A' is for repairs, by the plaintiff, of a defect that was caused by the plaintiff's employees' poor workmanship in repairing a leak in the transmission of a 30 ton caterpillar articulated dumb truck ["the truck"], commissioned by the second defendant.

The background according to the defence

[3]

According to the opposing affidavit deposed to by the second defendant the truck developed a leak in its transmission. It was decided to repair the leak. The plaintiff, duly represented by its service manager Paddy Bagnal quoted an amount of R 30000.00 to repair the leak. The second defendant agreed on the first defendant's behalf that the plaintiff proceed to effect the necessary repairs at an agreed cost of R30000.00. It was agreed that such repairs would take no longer than one week. It in fact took five weeks to repair the leak. An amount of R45000.00 was charged instead of the agreed R30000.00. When the truck was returned it operated for less than one day whereafter its entire transmission which had been in perfect working order but for the leak failed completely to function; an event ascribed to the plaintiff's technicians' gross negligence. It constituted a breach of their obligations to correctly effect the necessary repairs. Thereafter it took the plaintiff four months to repair the truck's transmission, despite the plaintiff's knowledge of the first defendant's contractual commitment to "Lafarge" to undertake certain quarrying work "and further that any downtime would be critical to the first defendant's ability to fulfil its obligations to "Lafarge." In order to mitigate its damages the first defendant hired a comparable unit at a cost of R80000 per month.

The nature and grounds of defence and the material facts

[4]

I have indicated the basis of resistance to make payment of R45000 which, added to R234000 comprise R279000 of the plaintiff's 'claim A'. Contrary to the plaintiff's averments in paragraph 7 of the particulars of claim, the plaintiff, according to the defendants has failed to meet its obligations and is accordingly not entitled to the payment claimed. In regard to R234000 of 'claim A' the defendants state that –

2008 JDR 1357 p3

Ntshangase J

"the plaintiff is attempting to claim for the cost of repairing a transmission which it damaged on the first instance through ineptitude on the part of its technicians to the extent that the transmission failed completely."

The defendants are, in my view, entitled to be heard in the trial Court on their version that to the extent of R279000 the plaintiff's 'claim A' is accordingly without basis.

[5]

The balance of the plaintiff's 'claim A' is to be met by an intended counterclaim which, as the defendants contend, "exceeds the value of the plaintiff's claim," and would, in terms of rule 22(4) of the Rules, extinguish such claim. It is in respect of a claim for damages allegedly incurred by the first defendant in hiring? a substitute vehicle at R80000 per month for four months to perform the tasks when the truck was, in that period, out of commission by reason of gross negligence in workmanship attributed to the plaintiff.

[6]

Mr Harrison who appeared for the plaintiff, in turn advanced an argument which relies on certain clauses of the "General Conditions of contract for work to be carried out" ["Annexure...