Lattimore Construction CC v Nile Property Enterprises CC

• Jurisdiction: South Africa
• Judge: Swain J
• Judgment Date: 17 December 2008
• Citation: 2008 JDR 1533 (D)
• Docket Number: 6639/2002
• Court: Durban and Coast Local Division

Swain J:

[1] The protagonists in the present building dispute are Mr. Robert Kemp (Kemp) the sole member of Lattimore Constuction cc (the plaintiff) and Mr. Arthur Wilmans (Wilmans) likewise the sole member of Nile Properties cc (the defendant). At the commencement of the present proceedings the defendant was a limited liability company, but by the time of trial, had been converted to a close corporation, under the name Nile Property Enterprises cc. Mr. Combrinck, who appeared for the plaintiff, applied for the substitution of the defendant by the close corporation in terms of Rule 15 (2), which was granted without opposition.

2008 JDR 1533 p2

Swain J

[2] During the course of the trial I prevailed upon Counsel to define the issues that were in dispute, because it appeared to me that insufficient attention had been devoted to limiting and defining the numerous issues that arose on the pleadings. As a result I was handed a document by Counsel for the parties headed "Issues to be dealt with by Trial Court". This document defined the issues which arose both in respect of the plaintiff's claim and the defendant's counter-claim. An amended list was attached to the plaintiff's heads of argument as Annexure D. As will become apparent in this Judgment, certain of these issues fell away during the course of the trial and in respect of certain others, no real dispute relevant to the relief claimed by either of the parties arose.

[3] In regard to the disputed issues, there exists a direct conflict of fact between the evidence of Kemp and Wilmans, who were respectively the only witnesses to testify on behalf of the plaintiff and the defendant.

[4] The correct approach in deciding whether the onus has been discharged by the party on whom such an onus lies, where there are two mutually destructive stories, is contained in the dictum of the Full Bench of the Eastern Cape Division in the case of

National Employers General Insurance v Jagers 1984 (4) 437 (E) at 440 D – G

2008 JDR 1533 p3

Swain J

"In a civil case, the onus is obviously not as heavy as it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in the present case, and where there are two mutually destructive stories, he can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff's allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true. If however the probabilities are evenly balanced in the sense that they do not favour the plaintiff's case any more than they do the defendant's, the plaintiff can only succeed if the Court nevertheless believes him and is satisfied that his evidence is true and that the defendant's version is false."

[5] At the heart of the dispute between the parties lies the issue of whether the parties agreed upon a fixed contract price of R180,000.00 for the plaintiff to construct the "site" works which included the guard houses, gates and front wall at the development known as Audley Gardens (of which the defendant was the developer), or whether the quote by the plaintiff, which was accepted by the defendant, did not include the provision of the gates, and was as follows:

2008 JDR 1533 p4

Swain J

Guard Houses	R55,386.76
Front Wall	R185,412.20
Total	R240,798.96

[6] There can be no room for a misunderstanding between the parties in this regard, because the defendant's version was that the contract price was orally agreed upon by Kemp and Wilmans and sealed with a handshake. The plaintiff's version is that no such agreement was reached in this manner. It is therefore clear that either Kemp, or Wilmans, is being dishonest on this issue.

[7] Wilmans, in support of his contention, relies upon Exhibit B4 which it is common cause was produced by Kemp. Under the heading "Site Establishment" appears an item described as "front wall, gates and guardhouses" with the amount of R180,000.00 alongside it. Kemp's version is that this was purely a budget figure produced by him to assist Wilmans in determining the overall cost of the development, to enable Wilmans to price the ten individual units comprising the development.

[8] It was common cause that another document (Exhibit B1 and B2) was produced by Kemp headed "Highgate Budget Unit 2" which contained the identical item "front wall, gates and guardhouses" with the amount of R150,000.00 alongside it.

2008 JDR 1533 p5

Swain J

[9] The case for the defendant in this regard, which was put to Kemp by Mr. van Heerden, S.C., who appeared for the defendant, was as follows:

"Okay, then we now know that B1 was a document that was already compiled. It was budget negotiations, as you rightly say, at the time of B1 it was a budget -- Correct"

Record Page 173 Lines 19 – 25

[10] Exhibit B1 is dated 08 November 2001 being the same date as site discussions took place, as recorded on Exhibit A1, and in regard to this date Mr. van Heerden, S.C. put the following to Kemp:

"Okay. And at that stage there was no contract price in existence at all ? --Correct."

Record Page 174 Lines 4 - 5

[11] It was common cause that at the site discussions Kemp was given certain drawings of the guardhouses and of the front wall and the following was then put to Kemp, by Mr. van Heerden, S.C.

"I see that after you had been given the drawings of the guardhouses and the front wall, that initial budget discussion which you had with the defendant about the price for the front wall, gates

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Swain J

and guardhouses went up from R150,000.00 to R180,000.00 --- It's still not a quotation, Mr. van Heerden. This is still a budget.

Record Page 174 Line 24 to Page 175 Line 3

[12] The following was also put by Mr. van Heerden, S.C. to Kemp:

"And after you were given the drawings of the front wall and the guardhouses, you went back again and you came back with this figure of R180,000.00 and that is the figure you reached agreement on. ---No, sir. No, sir, definitely not. That is still a budget. It is the same as your previous one, it's a work in progress, a working document."

Record Page 175 Lines 13 – 17.

The following was also put:

"No, we understand that Mr. Kemp, I am in agreement with you, that neither B1 nor B4 purport to be a quotation and it is also not the defendant's version that it is a quotation. So, make peace with that aspect. – Right."

Record Page 193 Lines 22 – 24

and finally the defendant's case was put as follows:

Now, it is the defendant's version, Mr. Kemp, that this document, B4, was compiled after 8 November, after you had been given the

2008 JDR 1533 p7

Swain J

drawings and after you had reconsidered the position of the R150,000 for the front wall, gates and guardhouses which was R150,000. Now, if I can point to that maybe just for the sake of the Court. If one looks at B1 under the site establishment column, you will see there the last item is front wall, gates and guardhouses R150,000. After that, after 8 November and after you had been given the drawings, you reassessed the position and then you increased that to R180,000. That you can see on B4 in the same line and that was the price. – No, sir."

Just bear me out and listen me out please. And that was the price that you and the defendant had agreed upon, shaken hands on. – No, sir."

Record Page 194 Line 15 to Page 195 Line 1

[13] However when Wilmans gave evidence he stated initially that Exhibit B1 was a preliminary exercise, to give a rough guideline as to what was going to happen.

Record Page 314 Lines 17 – 21

and that after the drawings were given to Kemp, he was able to see whether they would have "an effect on his budget figures which he had previously discussed with us".

Record Page 317 Lines 12 - 16

and that

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Swain J

"So he had received these drawings and he was now able to have more accurate costing. So he upped the price from R150,000 to R180,000 and I accepted it."

Record Page 318 Lines 8 – 11

and also Record Page 327 Lines 12 – 13

[14] When asked about the presence of a question mark and the amount of "R150,000" written next to the amount of R180,000.00 on Exhibit B4, Wilmans replied that he had made these inscriptions and agreed that in doing so, he had queried the amount of R180,000.00. When Mr. Combrinck suggested to him that the existence of the question mark placed in dispute his assertion that agreement had been reached on the amount of R180,000.00 he replied as follows:

"No, it doesn't at all. We had agreed R150,000 initially. The final drawings came out on 8 November. Mr. Kemp came to see me and said to me there are aspects of the wall which he had no (sic) accounted for. I had a look at it and I agreed with him.

Okay. Why did you put the question mark there then? – Because before I saw him, he had previously quoted R150,000, it was now R180,000. I wanted to know why he was changing the budget and he motivated that to me that he felt it was necessary to increase the price and I agreed with him.

Page 396 Line 24 to Page 397 Line 6

2008 JDR 1533 p9

Swain J

[15] When asked why he had written the amount of "R150,000.00 (inc gates!)" on Exhibit B6 and not R180,000.00 as he had received it after Exhibit B4, and after the amount of R180,000.00 had allegedly been agreed upon as the contract price, he replied as follows:

"Why I didn't put it was very simply that I was protesting as an internal document, I was protesting that Mr. Kemp was trying to milk us. That's...