SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy	

IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG

CASE NUMBER: 343/2021
Reportable: YES/NO
Circulate to Judges: YES/NO
Circulate to Magistrates: YES/NO
Circulate to Regional Magistrates: YES/NO
19 Sept 2023
In the matter between:-

AMARIS GAME BREEDERS (PTY) LTD	Plaintiff	
		
and		
		
BOWKON (PTY) LTD 	Defendant	

JUDGMENT

FMM REID, J:

Introduction:

[1]	This matter has been set down for two (2) days trial, as per the order of Petersen J dated 30 November 2022 for the trial to proceed on both merits and quantum. 

[2]	This is a contractual claim in terms of which the defendant would provide a turnkey solution to the plaintiff in performing construction of a guest lodge on the farm K[...] 2[...], Groot Marico, North West.  The agreement between the parties was oral, and were entered into on / about June 2018 at or near Groot Marico, North West Province and the parties were duly represented.

[3]	The plaintiff’s claim against the defendant is vested on two (2) grounds:

3.1.	Unjust enrichment in the amount of R709,072.17 (Seven Hundred and Nine Thousand Seventy Two Rand and Seventeen Cents); and

3.2.	Damages suffered in the construction project in the amount of R1,881,081.94 (One Million Eight Hundred and Eighty-One Thousand and Eighty One Rand and Ninety Four Cents).

[4]	Adv SM van Vuren appeared on behalf of the plaintiff.  On the date of the hearing there was no representative on behalf, and the defendant was also not present in Court.  The notice of Set Down has been served on the defendant and I am satisfied that the defendant has knowledge of the proceedings.

Material factual background
[5]	The defendant was to perform construction works per the amended bill of quantities the remuneration for due and full performance of the agreement was R3,999,6150.00 (Three Million Nine Hundred and Ninety Nine Thousand Six Hundred and Fifteen Rand).

[6]	The defendant submitted various bills of quantities to the plaintiff and the plaintiff has made payment to the defendant in the amount of R4,708,687.17 (Four Million Seven Hundred and Eight Thousand Six Hundred and Eighty Seven rand and Seventeen Cents).

Claim 1: Unjust Enrichment

[7]	Adv van Vuren who appeared on behalf of the plaintiff submitted that the plaintiff made the payments in the reasonable and bona fide belief that the payments were due, owing and payable to the defendant.

[8]	The plaintiff consequently overpaid the defendant in the amount of R709,072.17 (Seven Hundred and Nine Thousand Seventy Two Rand and Seventeen Cents).

[9]	As such, the defendant was enriched at the expense of the plaintiff which was impoverished in the amount of R R709,072.17 (Seven Hundred and Nine Thousand Seventy Two Rand and Seventeen Cents).

[10]	Adv van Vuren placed before court the documents that reflect the bill of quantity as well as the amount that was paid.

[11]	I am satisfied that the defendant is indebted to the plaintiff in the amount of R709,072.17 (Seven Hundred and Nine Thousand Seventy Two Rand and Seventeen Cents) on the basis of unjust enrichment.

[12]	The first claim of the plaintiff is thus successful.

Claim 2: Contractual Damages

[13]	The plaintiff claims that the defendant failed to perform in terms of the oral construction agreement and specifically failed to perform in a workmanlike and effective manner.  The plaintiff has employed the services of a third party to complete the project and restore it in a workmanlike and effective manner.

[14]	In support of this claim, the plaintiff called Paul Badenhorst, a certified Projects / Site Manager as an expert witness.  Mr Badenhorst testified that he took the photo’s that are attached in the court documents, which reflect the work done by the defendant.

[15]	Mr Badenhorst testified that he has the following work experience:

15.1.	2018-2021:	Consulting and contracting work on various trades in the construction industry;

15.2.	2014-2017:	Project Manager-Developing Curro School Campusses Nationally.  Contract expired end of October 2017. Nationality Home Builders Registration Council “NHBRC” Qualified & Registered with 15 years of practical experience.

15.3.	2011-2013:	Joined medium size company as Construction Site Agent for the Construction of School Campusses for the Curro Holdings Private School Group currently listed on the Johannesburg Stock Exchange.

15.4.	2007-2010:	Developing of 150 affordable housing units and 2 x luxury speculation houses at Midstream Estate Centurion.

15.5.	1990-2006:	Self employed
Entrepreneur / businessman / Imports and Exports
Manufacturing for the building industry
Developing of own factory complex 

15.6.	1988-1989:	2 years articles at a Auditfirm in the Accounting and Business Management Skills Training 

[16]	Mr Badenhorst testified that he has undergone the following academic qualifications, studies and courses:

16.1.	2002-2004 & Ongoing: Furthered my Studies in Construction Management which included: Applied Building Science, Quantity & Site Surveying, Project planning and Estimation/Pricing/Accounting/Programs & Software/ Communication/Agreements & Contracts.

	Construction Technology-Structures & Concrete/Materials/Plan Interpretation/Quality control/House

16.2.	1985-1988:	Studied B-Com Accounting (to 3rd year) at University of Pretoria and 2 years articles there-after

16.3.	Subjects completed: Accounting 301/ Economics 202/ Audit 202/ Business Management & Economics/Statistics/Commercial Law/ SA Taxes

16.4.	1982-1984:	National Service Duty (Instructor at SA’s Elite Oudtshoorn Military Leader School – Rank of Staff Sergeant)

16.5.	 Matriculated CR Swart High School

[17]	Mr Badenhorst testified that he has the following professional skills and qualities:

17.1.	Sufficient knowledge on all aspects of construction due to years of practical experience and courses attended

17.2.	Excellent communication and people skills

17.3.	Respect for co-workers and management

17.4.	Quantity surveying and Bills of Quantities

17.5.	Budget and Financial Planning

17.6.	Projects Planning and Programs

17.7.	Recruitment and costing

17.8.	Personnel allocation and job descriptions

17.9.	Progress reports and planning ahead

17.10.	Problem Solving

17.11.	Handling of meetings with professional staff such as architects, engineers, surveyors, suppliers, general site meetings and accounting tasks.

17.12.	Health and Safety Issues

17.13.	Subcontractor Appointments and Contracts

17.14.	Determination of rates payable and negotiations on market related and “in budget” rates

17.15.	Executing of Company Policies

17.16.	Plan discussion, updating and solutions

17.17.	Daily feedback to Management

17.18.	Stock Control Systems

17.19.	Claims Control Systems

17.20.	Computer literate (Excel Spread Sheet, MS Word, Pastel, Smartsheet and various others

17.21.	Waste Management and Environmental Controls

17.22.	All aspects of Managerial Skills and Accounting

17.23.	Dedicated, reliable and hard working

17.24.	Team building

17.25.	Motivation

[18]	In the expert report filed by Mr Badenhorst, he found, in relation to the premises (loosely translated):

18.1.	That the electricity on the premises is not secured. Loose electrical cables are present and present a fire hazard.

18.2.	The roof structures of the buildings are unsafe and needs to be properly supported.  This can only be done once the current structures have been broken down.

18.3.	The brick and mortar work does not form a unit, which causes a hazard to the security and stability of the walls.

18.4.	The floors do not have any outlet for water as the water flows to the bedroom at the time of his inspection.

18.5.	The tiles were not completed and no grouting has been done.  Several tiles have been damaged and need to be replaced.

18.6.	The sanitary systems were incomplete units: only toilet basins without any cistern.  There was no taps or basins on the premises.

18.7.	The electrical work inside the buildings are a mess.  Total re-installation will have to be done.

18.8.	The allimunium and glass work for windows and doors are without any lock systems.

[19]	Mr Badenhorst referred the court to a bill of quantities, in terms of which he testified that the amounts are less than market related prices.  This would be the total amount to repair the damages occasioned by the defendant.  He testified that a fair and reasonable amount would be the amount of R1,881,081.94 (One Million Eight Hundred and Eighty-One Thousand and Eighty One Rand and Ninety Four Cents).

[20]	I find that the plaintiff has proven its claim for damages against the defendant in the amount of R1,881,081.94 (One Million Eight Hundred and Eighty-One Thousand and Eighty One Rand and Ninety Four Cents).

[21]	Claim 2 is thus to be successful.

Costs

[22]	Liquidation proceedings have been instituted by the defendant against the plaintiff in the High Court of South Africa, Gauteng South Division, Pretoria under case number 10853/2020.

[23]	Adv van Vuren requested that the cost of these proceedings should include the cost of the liquidation proceedings.

[24]	I hold the view that this court does not have the necessary jurisdiction to grant any cost order in relation to proceedings that took place in another court.  As such, the cost order cannot include the liquidation proceedings.

[25]	The normal rule is that a successful party is entitled to its costs.  I find no reason to deviate from the normal rule.

[26]	The defendant is liable for the cost incurred by the plaintiff in these proceedings, on the normal scale of party and party.

Order:
[27]	In the premises I make the following order:

i)	The defendant is ordered to pay to the plaintiff the amount of R709,072.17 (Seven Hundred and Nine Thousand Seventy Two Rand and Seventeen Cents).

ii)	The defendant is ordered to pay to the plaintiff the amount of R1,881,081.94 (One Million Eight Hundred and Eighty-One Thousand and Eighty One Rand and Ninety Four Cents).

iii)	The defendant is ordered to pay interest on each of the aforementioned amounts at the prescribed rate of interest a tempora morae from date of summons to date of payment.

iv)	The defendant is ordered to pay the cost of the plaintiff.

FMM REID
JUDGE OF THE HIGH COURT
NORTH WEST DIVISION MAHIKENG

DATE OF HEARING:		15 AUGUST 2023

DATE OF JUDGMENT:	 19 SEPTEMBER 2023

APPEARANCES:
FOR PLAINTIFF:			ADV SM VAN VUUREN

INSTRUCTED BY:			SMIT STANTON INC
					29 WARREN STREET
					MAFIKENG.
TEL:					018 381 0180/1/2/3
REF:					NJ/KRI20/0001/2021/RR

INSTRUCTED BY:			P W KRIGE ATTORNEYS
					162 STYMIE AVENUE
					CENTURION

FOR DEFENDANT:			NO APPEARANCE
				
ATTORNEYS:			CAVANAGH & RICHARDS
ATTORNEYS
CB CENTRE EAST BUILDING
75 DURHAM ROAD
CLUB VIEW, CENTURION