JSW Electrical (Pty) Ltd v SBB Joint Venture

• Jurisdiction: South Africa
• Judge: Du Plessis J
• Judgment Date: 14 October 2008
• Docket Number: 24603/2001
• Court: Natal Provincial Division
• Hearing Date: 07 October 2008
• Citation: 2008 JDR 1295 (T)

Du Plessis J:

Towards the end of 1998 the defendant appointed the plaintiff as its sub-contractor in respect of the electrical installation at the Machadodorp Toll Plaza. The plaintiff commenced with the work and the defendant paid to it three progress payments in accordance with payment certificates issued in terms of the written subcontract. It is common cause that, before completion of the work, the subcontract was terminated on 21 January 1999 It is also common cause

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that the defendant terminated the contract because it contended that the plaintiff's work was behind schedule and was in certain respect sub-standard.

It is further common cause that, on termination of the subcontract, the parties made a written agreement. The essential terms of this written agreement, to which I shall refer as the "termination agreement", were, first, that completed work was to be "measured, agreed and paid for at schedule of rates". In the second place, the termination agreement provides that "MOS (materials on site) will be taken over and paid for as agreed" between the parties. The termination agreement further provides: "Sub standard work will be measured and not paid for". The final clause of the termination agreement provides that measurements were "to be completed, agreed and signed for by 5pm 25.1.99". On the pleadings it is common cause that in terms of the termination agreement the parties had fully and finally settled all rights accruing to them and all their obligations.

It is the plaintiff's case that on Monday, 25 January 1999 its director, Mr Siegl, and the defendant's representative, a quantity surveyor by the name of Soepboer, measured materials on site and agreed on the materials for which the defendant was to pay the plaintiff. As to completed work, Soepboer had already in December 1998 measured and quantified work that the plaintiff had done up to that stage. The plaintiff contends that, also on 25 January 1999, Siegl and Soepboer agreed not to re-measure completed work up to that date. but that he

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defendant would pay the plaintiff in accordance with the December certificate while the plaintiff would then not be entitled to payment for work completed after the date of the certificate. Accordingly, the plaintiff now claims from the defendant payment of R432 784.77 comprised of the amount of the December certificate, with some adjustments, the value of the materials on site and retention money that had been withheld in respect of progress payments in terms of the subcontract.

Mr Siegl was the plaintiff's only witness. He testified that between September and December 1998 the plaintiff received progress payments in terms of three payment certificates that Mr Soepboer had issued in accordance with the subcontract. In December 1998, Soepboer prepared the fourth certificate in terms whereof an amount of R106 696.30 plus VAT, a total of R121 633.78. was to be paid. The witness criticised aspects of the certificate to which I shall return in due course.

Siegl further said that the work had fallen behind schedule and that the defendant wrongly blamed the plaintiff for it. On Monday 18...