Lubcon Civils CC v Rechalex Construction (Pty) Limited

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: TA Maumela J
• Judgment Date: 30 March 2021
• Docket Number: 35428/2018
• Hearing Date: 30 March 2021
• Court: South Gauteng High Court, Johannesburg
• Citation: 2021 JDR 1458 (GSJ)

Maumela J:

1.

This is an application for leave to appeal which is opposed. The applicant, Lubcon Civils CC, was the respondent in the main matter where summary judgment was granted against it. In that

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case, (the main case), the respondent was ordered as follows:

1.1

To pay to the applicant an amount in the sum of R1 440 451.95.

1.2

To pay to the applicant, interest on the above amount at 10.5% per annum from 30 April 2017 and at the rate of 10.25% per annum from 1 September 2017 to date of final payment and,

1.3

To pay the Costs of the suit.

CAUSE OF ACTION IN THE MAIN MATTER.

2.

In the main matter, the plaintiff's claim was premised upon an agreement for the rendering of asphalt surfacing and construction services and the supply of products and material relating to the said services. The plaintiff would render its invoices to the defendant. It was agreed that the invoiced amounts would become due and payable within 30 days from the date of each invoice. In the agreement, payment by the defendant was not rendered be subject to any condition.

3.

In the application for summary judgment, the plaintiff contended it rendered three invoices to the defendant. The said three invoices which became common cause reflected the following:

3.1

Invoice number 93, dated the 30th of March 2017, which was in the amount of R15 960.00.

3.2

Invoice number 97, dated the 10th of April 2017, which was in the amount of R659 977.69 and

3.3

Invoice number 125, dated the 14th of June 2017, which was in the amount of R1 424 491.95.

The second invoice, in the amount of R 659 977.69 was paid in full by the defendant on the 9th of May 2017. This payment was in accordance with the agreement entered into between the parties.

4.

Most significantly, among others, in the main matter the parties were at variance about whether payment by the defendant for the benefit of the plaintiff was due or not. The defendant contended that the timing for purposes of payment is subject to

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a suspensive condition. In that regard, the defendant contended that the agreement entered into between the parties was among others to the effect that: 'plaintiff would render "its certificate for work done to the JDA, which certificate would include the services rendered and goods delivered by the plaintiff." The plaintiff on the other hand disputed that in the agreement payment was made to be subject to any suspensive condition. It is contended that according to the agreement between the parties; no sooner would it, in its capacity as the party regarding service have completed rendering the services agreed than payment would be due and payable.

5.

As indicated under paragraph 3 above, payment in honour of the second invoice, in the amount of R 659 977.69 was made in full by the defendant on the 9th of May 2017. This payment was not subject to any substantive suspensive condition. However, the defendant argued that the payment in honour of the second invoice, billing the sum of R659 977.69, was consequent to a 'special arrangement'. However, the defendant did not produce written or other proof of the special arrangement alleged. It is among others on that basis that the plaintiff disputed that any special arrangements were made by the parties so as to render payment to be due.

6.

It would have not have made sense for the court a quo to find that a suspensive condition was agreed upon for purposes of determining when payment would be due without proof of the suspensive condition as alleged by the defendant. In that regard, this became the word of the plaintiff as against that of the defendant. After applying the applicable test for purposes of instances where versions of the parties are diametrically opposed to one another and therefore destructive against each other, the court applied the approach canvassed in the case of Stellenbosch Farmers' Winery Group Ltd and Another v Martell et cie and Others [1]

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7.

In that case, the court had to deal with versions by opposing parties which were mutually exclusive to one another. It laid out an approach to be applied in such instances and in that regard, it stated the following: "To come to a conclusion on a disputed issue, a court must make findings on:

(a). The credibility of the various factual witnesses;

(b). Their reliability; and

(c). The probabilities.

As to (a), the court's finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance such as:

(i). The...