PGN Civils (Pty) Ltd v Greater Giyani Municipality

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: MG Phatudi J
• Judgment Date: 21 January 2022
• Court: Limpopo Division, Polokwane
• Hearing Date: 20 October 2021
• Docket Number: 4924/2020

MG Phatudi J:

[1]

This application is brought in terms of rule 8 (1) of the Uniform Rules of court ('the rules'). The defendant was served with a provisional sentence summons to first answer the claims against it. The claim is opposed.

[2]

The plaintiff in the summons relies on two distinct claims. I consider it apposite to first lay a foundation upon which the two claims are based.

[3]

The plaintiff's claim (claim 1) is that on or about the 14 July 2017 and at Giyani, the parties concluded a written agreement ("the agreement") which comprised of the letter of appointment dated 04 July 2017 [1] ) attached to the summons.

The amount of R20 143 128 .28 accepted, was as offered by the plaintiff in its bid document attached to the provisional sentence summons and marked as an annexure [2] ('A1') enclosing the basic terms and conditions of the relevant tender. (contract No: G/G/M/015/018/2017) In support of the claim, the plaintiff also attached the letter of appointment to which reference was made, the acceptance letter, and the Tender document which was subject to the usual General Conditions of Contract ('GCC').

[4]

The plaintiff having performed its obligations in terms of the said agreement submitted to the defendant its tax invoice being for payment of the amount certified by the engineers pursuant to certificate no.5 duly annexed to the summons [3] .

2022 JDR 0191 p3

MG Phatudi J

[5]

This annexure was issued and identified by the plaintiff's engineers as a "final progress payment certificate No.07" dated 26 November 2018, for the attention of the defendant's municipal manager.

[6]

The certificate referred to included "half of the Contractor's retention dated 27 November 2018", the latter's tax invoice for work executed as described. The amount claimed was in the tune of R2 855 283.00, VAT inclusive, (15%) payable to the plaintiff. (PGN Civils (Pty) Ltd).

[7]

In paragraph 6 of the particulars of claim, the plaintiff, however, refers to a tax invoice in respect of the amount certified by the engineers for interim payment (certificate no.7) marked annexure "A6"to the summons [4] .

[8]

The latter annexure "A6" reflects an amount payable to the plaintiff in respect of claim 1 as the sum of R65 207-77. The relevant tax invoice in support of claim 1 is dated 14 December 2018.

[9]

Quiet intriguing, is the fact that what the plaintiff pleaded as annexure "A5", being the certified amount of R65 207-77 patently differs from certificate No: 7 which reflects an amount of R2 856 283.00 VAT inclusive.

This alone is problematic to make a determination, regard being had to the general principles of pleading, in particular, to which I shall enlarge on shortly in this judgment.

[10]

The aforegoing facts are as pleaded by plaintiff in support of claim 1.

2022 JDR 0191 p4

MG Phatudi J

[11]

I turn now to consider Claim 11 which invariably is predicated on the facts pleaded in respect of claim1.

[12]

The plaintiff, in claim 11 once again, relies on the agreement to which reference was made as read with the 'GCC' and a certificate of completion issued by the engineers on 14 September 2018 [5] .

[13]

It is significant to mention though obiter, that annexure 'A7', being a certificate of completion, was signed by the parties and their duly authorized agents.

[14]

Subsequent thereto, and on 25 September 2019, the plaintiff submitted its tax invoice to the defendant for payment of the amount of R1 121 119.81, VAT inclusive [6] .

[15]

The plaintiff alleged in its particulars of claim that the defendant has failed to meet its obligations to settle payments due by it made in both claim 1 and 11. Both these claims are, however, disputed by the defendant in its answering affidavit. ("AA"). The defendant has in fact pleaded in its "AA" that it has bona fide defence in that it has paid to the plaintiff all its contractual liabilities, the retention money included.

[16]

The defendant's case is that it has already paid a retention fee to the plaintiff in the sum of R2 014 312.83, with additional amount of R45 361.46. The total amount paid to the creditor according to the defendant, translates to R2 059 674.28. This amount was allegedly paid to POLOKWANE

2022 JDR 0191 p5

MG Phatudi J

SURFACING (PTY) LTD at the instance of the plaintiff as evinced in annexures 'BB1'and 'BB2 [7] ' annexed to the answering affidavit.

[17]

The transaction referred to above was on account of the Cession agreement the plaintiff ceded in favour of Polokwane Surfacing (Pty) Ltd (Surfacing) against the former's debt in the sum of R2 697 643.10. Notwithstanding the said discharge, so the argument went, the plaintiff continued to submit further claims which were honoured, until the contract value was milked dry.

[18]

As I understand, the hard core of the dispute appears to me to be in the amount of retention owing, due and payable to as the plaintiff well as the...