Ebesa Architects (Pty) Ltd v City of Cape Town
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Mantame J |
| Judgment Date | 01 September 2023 |
| Citation | 2023 JDR 3303 (WCC) |
| Hearing Date | 07 August 2023 |
| Docket Number | 11824/2022 |
Mantame J:
Introduction
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This is the application for leave to amend the applicant’s (“first defendant”) plea. On 14 July 2022, the respondent (“plaintiff / the City”) instituted an action for damages against the applicant and five (5) other defendants. A notice of bar was served by the respondent on 24 August 2022. On 5 September 2022, the applicant filed its special plea and conditional special plea. On 22 September 2022, the respondent filed its replication to the first defendant’s special plea and conditional special plea, and on 02 November 2022 it delivered its notice to amend its particular of claim.
There appears to be no objection raised by the applicant when the respondent amended its particulars of claim. On 25 November 2022 and / or 6 December 2022, the applicant proceeded with its notice of intention to amend its Conditional Special Plea and plea. On 9 December 2022, the respondent delivered its notice of objection to applicant’s notice of intention to amend. On 19 January 2023, the applicant proceeded with its application for leave to amend its plea and conditional special plea which the respondent opposed on 30 March 2023. It is for these reasons that the matter served before this Court.
Background Facts
The respondent sued the first to sixth defendants for damages suffered as a result of an alleged negligence. The action emanates from two (2) tenders; namely:
Tender number 269/2012/13 (“the first tender”) awarded to a joint venture, namely Ebesa 372E JV (“Ebesa JV”); and
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Tender number 267Q/2015/16 (“the second tender”) awarded to Boshard Construction (Pty) Ltd (“Boshard”).
The applicant and five (5) other defendants are members of Ebesa JV who successfully tendered for the provision of professional services which had to be executed together with the service, in terms of the second tender. In respect of the first tender Ebesa JV was required to perform the following services:
the provision of architectural, civil, structural, electrical and mechanical engineering services, quantity surveying, acting as principal agent for the Employer (the City), safety services, environmental assessment and compliance monitoring, and related services.
responsibility for all professional services required to fulfil the City’s objectives as advertised therein.
Ebesa JV was to perform its professional services in three (3) areas, i.e., North, South and East of the City during the three (3) year period commencing on 1 July 2013 until 30 June 2016 with an estimated value of R50 million (excluding VAT). The services in terms of the second tender had to be executed in tandem with the professional services awarded in terms of the first tender. The second tender was awarded to Boshard commencing on 1 June 2017 and ending on 12 June 2018. That did not materialise and the period was extended.
In terms of the first tender Ebesa JV was responsible for the complete project and contract management. It was the respondent’s assertion that the applicant and other five (5)
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defendants breached some clauses in the agreement / joint venture agreement with regard to the two (2) tenders. As a result of the negligence, breach of contract and / or duty of care of the applicant and the other five (5) defendants in executing their duties, the respondent suffered damages by incurring fruitless and wasteful expenses in the aggregate sum of R6 308 053.17 (six million three hundred and eight thousand and fifty-three rand and seventeen cents) – (VAT included).
Application for Leave to Amend
As stated above after an objection was raised by the respondent to the applicant’s notice of amendment, the applicant filed an application for leave to amend.
In its application for leave to amend the applicant asked the Court to grant an order in the following terms:
By deleting the phrase “failing which such a dispute would first be referred to either mediation or adjudication, and then to arbitration” in paragraph 2 thereof and by replacing it with “failing which such a dispute would be referred to mediation.”
By deleting the phrase “nor was the dispute ever referred to or determined by mediation, adjudication or arbitration” in paragraph 3 thereof and replacing it with “nor was the dispute ever referred to mediation.”
By deleting the Prayer and by replacing it with “Wherefore the first defendant prays that the action be stayed pending the referral to and
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finalisation of the mediation of any dispute relating to the plaintiff’s claims.”
That the applicant be granted leave to amend its Plea in the following manner:
By deleting paragraph 15 thereof and by replacing it with:
“15. Other than to deny that the Services Contract was extended, the first defendant admits the allegations in these paragraphs.”
By deleting paragraph 23 thereof and by replacing it with:
“23. The first to fifth defendants, and not the JV, rendered services to the plaintiff in respect of the Works.”
By deleting the phrase “Alwyn Laubscher of” where it appears in paragraph 24.
By deleting paragraphs 41 to 43 thereof and by replacing it with:
The first defendant admits that:
41.1
The assembly of the video screen wall and the construction of the surrounding structure was originally designed and planned with 12 60-inch TV screens;
41.2
Without informing the first defendant or seeking its advice in that regard, 18 70-inch TV screens were acquired and utilized to assemble and construct the video screen wall; and
41.3
Due to the height of the raised floor and the height of the concrete beam at the top of the surrounding structure, the
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video screen wall was unsuitable and not operationally acceptable to the plaintiff due to a portion of such wall not being visible to operator.
The first defendant denies the allegations in this paragraph as same contradict or conflict with what is pleaded above.
In particular, the first defendant denies that its conduct or omissions gave rise to the complaints of the plaintiff or that it in any way breached any allegation it may have had to the plaintiff.”
By deleting the words “was negligent or” where it appears in paragraph 44 thereof.
By inserting the phrase “that it is liable for any delay or losses suffered by the plaintiff, if any” between “the plaintiff” and “the first defendant” where it appears in the second line of paragraph 44 thereof.
By deleting paragraph 48 thereof and by replacing it with:
The completion of the Works was delayed by numerous factors such as, inter alia, the requisite building plans were not approved on time as the applications for rezoning, subdivision and consolidation of the properties on which the Works had to be performed was not timeously attended to, recorded or registered by the plaintiff.”
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By deleting paragraph 52 thereof and by replacing it with:
Secondly, any defects to or problems with the video screen wall, and any remedial work that had to be undertaken in that regard, were not occasioned by the conduct or omissions of the first defendant.”
By deleting paragraph 56 thereof and by replacing it with:
Thirdly, any damages allegedly suffered by the plaintiff were not occasioned by the conduct or omissions of the first defendant.”
In raising its objection to paragraph 7.1.1 above, the respondent stated that Clause 12.2.4 (Part C1: Agreements and Contract Data clearly contained...
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