Tsebtsa Construction (Pty) Ltd v Impala Platimum Mine Rustenburg
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Reddy AJ |
| Judgment Date | 24 August 2023 |
| Citation | 2023 JDR 3263 (NWM) |
| Hearing Date | 26 July 2023 |
| Docket Number | UM 149/23 |
| Court | North West Division, Mahikeng |
Reddy AJ:
INTRODUCTION
After hearing, this urgent application, it was struck from the roll for the lack of urgency, with the applicant to pay the costs. Peculiarly, a request for reasons for the order was filed, notwithstanding, the reason for the striking off the application being inherent in the ipsit dixsit of the Court order.
2023 JDR 3263 p2
Reddy AJ
The applicant sought the following relief in urgent court:
That this matter be heard as an urgent application as envisaged in rule 6(12) of the Rules Court and that the ordinary process of service, time and filing of documents be dispensed with.
Declaring that there exists a valid contract between the Applicant and Respondent in respect of the following Purchase Orders
Purchase Order number 4502518280
Purchase Order number 4502518291
Purchase Order number 4502518286
That the terms and conditions of the General Conditions of Rev.2 in respect of Purchase Order number 4502518280 are declared valid and enforceable
That the terms and conditions of the General conditions of Contract Rev.2 in respect of Purchase Order number 4502518291 are declared valid and enforceable.
That the terms and conditions of the General conditions of Contract Rev.2 in respect of Purchase Order number 4502518186 are declared valid and enforceable.
That the Respondent is hereby ordered to pay the Applicant the amount of R 2002 927.82.
Costs of the application on attorney and client scale.
Further and/or alternative relief.
2023 JDR 3263 p3
Reddy AJ
The opposed relief was struck from the roll due to lack of urgency on 26 July 2023. A request for reasons as envisaged in terms of Rule 49(1)(c) of the Uniform Rules of Court was served before me on 7 August 2023. In compliance thereto, I set out my reasons succinctly.
The Parties
The applicant is Tsentsa Construction (Pty) Ltd, a company registered in terms of the laws of the Republic of South Africa, with its registered business address at 1661 Freedom Park Extension 1, Rustenburg, North West Province.
The respondent is Impala Platinum Limited, also a company duly registered in terms of the laws of the Republic of South Africa with its registered address at Farm Beerfontein 263 JQ District of Phokeng, Impala Platinum Stores, North West Province.
Background facts
The applicant is a listed company on the respondent’s data base to be contacted by the respondent for inter alia various constructions on its property or the supply of services. To achieve this end, it is standard practice for the respondent to outsource, allocate and thereby contract with its identified contractors. On the selection and appointment of a service provider, the respondent would transmit a purchase order to same.
2023 JDR 3263 p4
Reddy AJ
On or about 25 June 2021, the respondent acting in accordance with practice, transmitted three purchase orders to the applicant. On 14 September 2021, the material and essential specialized equipment to fulfil the contract, was purchased. The applicant was to be responsible for the storage costs of same.
On 24 January 2022, internal email correspondence of the respondent suggested that the applicant had cancelled the contract. The respondent immediately communicated with the applicant to dispel the communication averring the cancellation of the contract and reaffirmed that the terms of the contract would be completed. The applicant was reassured that the contract would not be cancelled. There appeared to be some hostility between the applicant and respondent post the “cancellation “of the contract.
On 10 February 2022, a letter was authored by the applicant, accenting that the individual who had sent correspondence cancelling the contract, had no authority to do same, further thereto, the applicant had every intent to realise the contract. There was no retort from the respondent, but the applicant was telephonically referred to the respondent’s employees to resolve the matter. During the year 2022, the respondent only communicated to the applicant through the medium of telephonic communication. The assurance from the respondent throughout was that this issue would be resolved.
2023 JDR 3263 p5
Reddy AJ
The applicant subsequently learned that the projects, it was to complete, was allocated to another company or companies. After innumerable telephone calls only in April 2023, did the respondent request a backdrop to the matter. The applicant acquiesced. After a plethora of emails, the applicant was invited to a virtual meeting scheduled for the beginning of May 2023. The result of the meeting was that the matter would be escalated to the respondent’s legal department.
The timeline is best exemplified by the applicant who states as follows:
After weeks of waiting for the respondent’s legal department to formally contact the applicant, and only after the applicant requested to follow up, the respondent’s legal department contacted the applicant through the telephone and stated that it will contact the applicant within two(2) days, again through telephone for the respondent to explain the history of the matter from January 2022.
I interpose to state that the applicant had clearly stated its case to the respondent since it became aware of the purported letter of cancellation and therefore in its view, the applicant concluded that the respondent is merely delaying the finalization of this matter by constantly sending the applicant from pillar to post with no progress.
Consequently the applicant sought legal representation and on 25 May 2023 the applicant’s legal representative wrote a letter of demand to the respondent. . .
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