First Industrial Excavation Land Development Engineering & Clearing Corporation of SA Ltd v Duncker & Vladislavich (Pty) Ltd and Another

• Judge: Rabie J
• Judgment Date: 25 May 1966
• Citation: 1967 (1) SA 317 (T)
• Hearing Date: 26 April 1966
• Court: Transvaal Provincial Division

Rabie, J.:

This is the return day of a rule nisi granted on 5th April, H 1966, whereby first and second respondents were called upon to show cause why -

'(a)

the second respondent should not be restrained and interdicted from paying any amount to the first respondent in terms of an agreement between the first and second respondents relating to work done by the first respondent on behalf of the second respondent at a site at Garankua near Rosslyn, district of Pretoria;

(b)

the costs should not be costs in the cause of the action already instituted against it by the applicant; and

(c)

no order for costs should be granted against the second respondent unless it opposes this application.'

Rabie J

It was ordered at the same time that para. (a) of the rule should operate as an interim interdict pending the return day.

The first respondent, Duncker and Vladislavich (Pty.) Ltd., will A hereafter be referred to as respondent, and second respondent, Delcon (Pty.) Ltd., will be called Delcon.

Since the issue of the rule, I was informed by counsel, Delcon, which is unrepresented in these proceedings and does not contest the relief sought by applicant, has paid over an amount of R1,912 to the Registrar of the Court to be held by him pending the outcome of the application. B Apparently Delcon is prepared to pay respondent this amount in respect of the agreement referred to in para. (a) of the rule, and it is stated in an affidavit by one Austen Sales Perkins, filed on behalf of applicant, that respondent has agreed to accept this amount in full settlement of its claim against Delcon.

C Applicant now asks the Court to confirm the rule in respect of the money held by the Registrar. Respondent, in turn, asks that the rule be discharged and that it be given leave to uplift the said money.

The present dispute between the parties arose in the following circumstances. During about September, 1965, applicant and respondent D entered into an agreement, which was subsequently reduced to writing, in terms of which applicant hired out certain excavating machinery to respondent to enable it to perform certain work for Delcon on a subcontract basis. According to clause (1) of this agreement, which was obviously drawn by laymen, respondent agreed to pay applicant R16 for every hour the equipment was used, and in clause 15 it was provided as follows in regard to the manner of payment:

E 'Terms of payment are to be paid each and every month within three days of measurement and without any deduction or retention. In event of failure the renter (respondent) agrees to cede or permit the hirer (applicant) to obtain desired payment from employer (Delcon) and/or by full and complete cession of their contract. Any undue delays in payment exceeding one calendar month are to bear interest at current overdraft Bank rates.'

F On 4th December, 1965, it was agreed that respondent was indebted to applicant in the sum of R3,908. Applicant says that the true amount of indebtedness was R4,724.10, but that it indicated to respondent that it would be prepared to accept the smaller amount if respondent agreed to give it cession of its claim against Delcon in a form suggested by G applicant. Respondent refused to make any payment to applicant, its reason for refusing to pay being that the equipment which had been supplied to it by applicant was defective and that resultant delays and stoppages of work had caused Delcon to suffer damages for which it (respondent) was liable.

The aforesaid Perkins makes the following allegation in regard to applicant's attempts to receive payment from respondent:

H 'That on various occasions after the first respondent failed to make payment in terms of the agreement aforesaid by the 4th day of December, 1965, and in particular on or about 20th December, 1965, I requested the first respondent, through Mr. Vladislavich, a director of the first respondent and/or Mr. Duncker, an employee of the first respondent, whose wife is a shareholder and director of the first respondent, to cede to the applicant a portion of any moneys due to the first respondent by the second respondent in respect of work at the aforesaid site by the first respondent sufficient to cover the first respondent's indebtedness to the applicant. In breach of the terms of the said contract, the first respondent failed to do so.'

Respondent does not deny that it was 'on various occasions' asked

Rabie J

for a cession as alleged by Perkins. In regard to...