REPUBLIC OF SOUTH AFRICA

SOUTH GAUTENG HIGH COURT, JOHANNESBURG

CASE NO:  2009/34076

(1)	REPORTABLE: YES/NO 
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED. 

         ……………………...		……………………………
         DATE			SIGNATURE

				

In the matter between -

VOLSCHENK INSULATION 
CONVERTERS (PTY) LTD		PLAINTIFF 

and

SHORTS LIFTS (PTY) LIMITED 	        DEFENDANT

______________________________________________________________ 

JUDGMENT
______________________________________________________________ 

BORUCHOWITZ J:

[1] 	This action concerns a contract entered into between the plaintiff, Volschenk Insulation Convertors (Pty) Limited, and the defendant, Shorts Lifts (Pty) Limited, in terms of which the latter agreed to supply and install three domestic lifts at certain premises for and on the plaintiff’s behalf.  
[2]	Each party contends that the other has failed to properly perform its obligations under the contract, and has purported to cancel it.  In consequence, the plaintiff has proffered two claims against the defendant:  the first for restitution of performance arising from its alleged cancellation, and the second for consequential damages.  The defendant has instituted a counterclaim for damages based on the plaintiff’s alleged breach.

BACKGROUND

[3]	The material facts are largely common cause and can be briefly stated. 

[4]	The plaintiff is a domestic company which carries on the business of maintaining furnaces.  Its shareholders and directors, at the relevant time, were the Late Mr Jan Volschenk and his two sons:  Messrs C Volschenk and JHH Volschenk.

[5]	On or about 23 November 2004, the plaintiff accepted a written quotation submitted by the defendant (the initial quotation) in terms of which the defendant agreed to install lifts at three houses on a property along the Vaal River in Vanderbijlpark. The property belonged to a trust known as the Volschenk Family Trust and the houses in which the lifts were to be installed were intended for the accommodation of the plaintiff’s shareholders and directors.  
[6]	The following was expressly stated in the initial quotation:

       “We thank you for your inquiry on the above project and have pleasure in submitting out quotation in accordance with the specification summary below.

	NOTE		:  	All prices are NETT excluding VAT.
	Price			:	R92, 264-00 fully installed and certified
	Please Note!  The above price is per each with an effective 7.5% discount for cash.

	DELIVERY	:	Six weeks from approval of drawings
	INSTALLATION:	Four weeks from delivery of materials to site

	TERMS		:	30% on order
					60% on delivery of materials to site
					10% on completion and handing over for use.” 

[7]	Almost immediately upon conclusion of the contract, the parties fell into dispute concerning its implementation.  

[8]	On 22 December 2004 the plaintiff paid the defendant the sum of R94 662.66 and on 2 February 2005 certain materials were delivered to site.  A sum of R30 000 was paid on 3 February 2005 and a further amount of R96 217.16 on 10 February 2005.  

[9]	On 19 July 2005, the defendant demanded further payment.  In a letter dated 28 July 2005 the plaintiff’s director, Mr Jan Volsckenk, responded that not all items had been delivered to site and recorded that “[I]t is accepted that some small items will be delivered on installation, but bigger items like doors, sliding gates, door frames, safety control mechanisms, etc are to my mind important.  …”.  On the same day, the defendant, represented by its manager, Mr Tromp, addressed a letter to the plaintiff, in which he stated:  “… we remind you that the material delivered to your premises is in excess of what has been paid to us and no outstanding material will be delivered until you have given us the assurance of definite and acceptable payment commitments.  … ”.  On 18 August 2005, the plaintiff’s bookkeeper wrote to the defendant where he reiterated that not all items had been delivered to site and that the outstanding amount would only be paid after delivery.  

[10]	On 4 October 2005, a further sum of R15 777.14 was paid by the plaintiff.  On 22 June 2006, the defendant submitted a revised quotation in the sum of R105 195.01 (excluding VAT) for the completion of the lifts, which was accepted by the plaintiff.  And on 21 November 2006, the plaintiff paid a sum of R47 331.44 to the defendant.  

[11]	On 12 February 2007, the defendant submitted a further quotation (the second quotation) to the plaintiff for the completion and upgrading of the lifts, which was accepted by the plaintiff.  The second quotation, amended the initial quotation, and read as follows: 

       “Dear Mr Jan Volschenk

		The completion and upgrading of disabled persons lifts – Vereeniging

	Scope: To upgrade the disabled persons lifts to comply with SANS 1545 part 4 

	I have pleasure in submitting our quotation for the above mentioned work, in accordance with your requirements and as follows.

1.	To redesign machine steels to allow for the motor room to be on ground level.
2.	Improve the ride quality by installing an inverter drive.
3.	Install a remote controlled locking device for improved security.
4.	To redesign and remanufacture the lift car and controls to comply with SANS 1545 part 4

PRICE per lift
		Scope of work as requested 	:	R 32,854,00 excl vat

	As an option we can supply a brushed stainless steel finish to the interior of the lift, with a high quality floor tile in a design of your choosing for an incremented cost of R 6,180.00 excl vat

	VALIDITY	: 	The quotation holds good for a period of 30 days and is subject to confirmation thereafter.
	…

	DELIVERY 	:	Four to Eight weeks
	(Please note we cannot proceed until we have a permanent none interrupted 
	power supply)

	TERMS		:	90% payable on delivery of materials to site per lift
				:	10% on completion per lift” 

[12]	On 12 April 2007, new drawings in respect of the revised lifts were submitted by the defendant and on 29 May 2007, further items were delivered to the plaintiff.  

[13]	On 4 June 2007, the plaintiff’s attorney addressed a letter to the defendant in which, among other things, it was asserted that only a few motors and loose equipment to the value of approximately R50 000 had been delivered.  The defendant was placed on terms and told that unless the three lifts were installed and completed to the satisfaction of the plaintiff before 30 June 2007, the plaintiff would cancel the agreement.  In response thereto, defendant’s attorneys sent a letter to plaintiff’s attorneys in which, among other things, they disputed the plaintiff’s assertions and indicated that the defendant would “cancel the installation until a suitable payment agreement was concluded …”.    It was also specifically recorded that the plaintiff was “aware that high value, high risk for theft items, would be delivered as and when the items were needed for installation. …”

[14]	On 11 June 2007, a letter was addressed by plaintiff’s attorney threatening to liquidate the defendant should the latter fail to finalise the installation before end of business on 12 June 2007.  Further proposals were made by the plaintiff regarding payment of the then allegedly outstanding sum of R120 148.65 and completion of the contract, but these were not accepted.  

[15]	On 30 January 2008, defendant’s attorney addressed a letter to plaintiff’s attorney in which, among other things, it alleged that notwithstanding delivery of all materials to site on or about 29 May 2007, there had been a failure by the plaintiff to pay 90% of the contract price as was agreed in terms of the initial and amended quotations.  It was alleged that the total contract price for the three upgraded lifts was R449 039.16 (including VAT);  90% thereof amounted to R404 135.24 and as the plaintiff had only paid R283 988.59, there was a shortfall of R120 146.65.  It was accordingly contended that the plaintiff was in breach of the agreement and that if the outstanding balance of R120 146.65 was not paid within seven days, the defendant would cancel the agreement and claim damages.
[16]	Defendant’s attorney’s letter of 30 January 2008 was followed by a letter dated 8 February 2008, in which the defendant purported to cancel the contract.  

RELIEF CLAIMED

[17]	The plaintiff has elected to treat the defendant’s cancellation as a repudiation of the contract.  Accordingly, in Claim 1, the plaintiff seeks restitution of the amounts paid to the defendant against a tender to return the items received.  It is common cause that the plaintiff has paid a total of R283 988.59 to the defendant.  

[18]	Claim 2 is for damages flowing from the repudiation.  It is alleged that the plaintiff had a contractual obligation to provide accommodation to its employees, Messrs J Volschenk, C Volschenk and JHH Volschenk.  Had the defendant performed its obligations, the buildings in which the lifts were to be installed would have been available for occupation on 1 June 2007.  Because of the defendant’s breach the buildings could not be occupied during the period 1 June 2007 and 31 August 2009.  As a consequence, the plaintiff occurred the additional expense of having to pay for the accommodation of its employees and directors during the aforesaid period.  The plaintiff contends that it has suffered damages in the sum of R678 404.48.

[19]	The defendant raised a special plea of prescription but that was abandoned during argument.  

[20]	In its main plea the defendant denies having breached the contract and that its cancellation of 8 February 2008 constituted a wrongful repudiation thereof.  The defendant disputes that plaintiff is entitled to repayment of the sum of R R283 988.59.  In the alternative, the defendant pleads that if it be found that its cancellation indeed constituted a repudiation, then plaintiff is not entitled to the consequential damages claimed in Claim 2, as they do not flow naturally from the defendant’s breach and were not in the contemplation of the parties when the initial and revised contract was concluded.

[21]	The defendant’s counterclaim is for payment of the sum of R150 050.57, which is calculated and made up as follows:

	Total contract price			R449 039.16
	Less payments received		R283 988.59
							R165 050.57
	Less saved expenses due to 
	non-installation and commissioning	R  15 000.00
	R150 050.67

ISSUE

[22]	The principal issue between the parties is the meaning and effect of the phrase “90% payable on delivery of materials to site …” which appears in the revised contract.  
[23]	It is common cause that when the defendant cancelled the contract on 8 February 2008, the plaintiff had not effected payment of 90% of the revised contract price as is therein provided.  Whether such non-payment constituted a breach entitling the defendant to cancel the revised contract depends on whether the defendant had, at the date of cancellation, fulfilled its reciprocal obligation to deliver “all materials to site”, as was contemplated in the aforesaid phrase.  

[24]	It is plain from the wording of the phrase that the principle of reciprocity applies (See Christie’s “The law of contract in South Africa” (6 ed) 437-440, and the reference therein to ESE Financial Services (Pty) Limited v Cramer 1973 (2) SA 805 (C) 808-809).  Also see BK Tooling (Edms) Bpk v Scope Precision Engineering ) 1979 (1) SA 391 (A)).  The plaintiff’s obligation to pay 90% of the contract price was conditional upon performance by the defendant of its reciprocal obligation to deliver the materials to site.  These obligations were to be fulfilled consecutively.  Only upon the delivery of the materials did the plaintiff become obligated to pay 90% of the contract price.  

[25]	There is a sharp dispute between the parties as to the nature of the materials that had to be delivered to site before payment of 90% of the contract price was due.  The plaintiff contends that all, or at least the bulk, of the materials necessary for the installation of the lifts, had to have been delivered whereas the defendant asserts that it was understood that high-value items or items which were susceptible to theft or damage only had to be delivered when installation took place.

[26]	The resolution of the dispute involves a two-stage enquiry.  In the first instance, the Court has to determine the meaning to be attributed to the disputed phrase:  “on delivery of materials to site”, and what materials had to be delivered to site under the contract.  And secondly, the Court has to determine what materials were in fact delivered by the defendant.   

[27]	Three witnesses testified on behalf of the plaintiff, namely Mr Jan Volschenk; Mr Edward Clarence Thompson, an expert in the installation of lifts, and the plaintiff’s auditor, Mr Kobus Johannes Taljaard.  The only witness called by the defendant was its sole director, Mr Johan Willoughby Walls.  As many of the facts that I have recounted are largely common cause or incapable of dispute, it is unnecessary to recount in detail what each of these witnesses told the Court .  I will only refer to such parts of their evidence as is relevant to the issue to be decided.  

[28]	The question what was in fact delivered can be readily disposed of.  Mr Thompson who, indisputably, is an expert in the installation of lifts, testified that during 2009 he was approached by Mr Jan Volschenk to inspect certain equipment that was delivered at his premises.  Thompson compiled a list of items that in his view were necessary to complete the installation of the three lifts, which was handed in as Exhibit D.  He found that at least the following equipment that was needed to install the lifts was not delivered or on site:

28.1	Controller and controller box for lift drive;

28.2	Electrical wiring or equipment necessary for connection of the control mechanism;

28.3	Lights for the shafts and wiring for such lifts;

28.4	Lights for the lift car and emergency light in the car;

28.5	Trailing cables for lift car;

28.6	Limits and door locks or control mechanism;

28.7	Governor, pit pulley and steel cable for safety speed control;

28.8	Doors and door frames for landings.

[29]	Thompson testified that he could not locate any delivery notes against which he could check whether some or all of the equipment referred to above was in fact delivered.  He also could not locate a SANS-1545-1 to SANS-1545-4 exemption letter and registration documents for the installation of the lifts from the Department of Labour.  In his opinion, no proper installation of the lifts was possible as a result of the missing equipment, which was inadequate and incomplete.

[30]	Thompson’s evidence was not seriously disputed by the defendant.  A meeting of experts was held during November 2013, which was attended by Thompson and Mr Walls.  Their joint minute, which was handed in as Exhibit B, reflects that the items referred to by Thompson in paragraph [27] above were not delivered by the defendant and that a proper installation of the lifts was not possible without the missing equipment.

[31]	Mr Walls made a number of important concessions during his evidence.  He admitted that the sliding doors and the doorframes should have been delivered.  He had no personal knowledge of what was delivered either in 2005 or, later, in 2006, and relied exclusively in what is contained in the various documents before the Court and what had been told to him by Mr Tromp.  He personally had no dealings with Mr Volschenk.  Tromp is the person who gave the initial quotation.  Walls’ understanding, based on what Tromp had told him, was that high-value items or items that could readily be stolen could be delivered as and when they were required to be installed.

[32]	In the light of the aforegoing, the Court can safely make the finding that the defendant did not deliver to site the materials specified by Thompson, as particularised in Exhibit D.  The Court also finds that no proper installation was possible as a result of the missing equipment.  

[33]	I turn now to the interpretational question, namely, what materials ought, in terms of the contract, to have been delivered.  

[34]	The approach to contractual interpretation has recently been reinstated, with some modification, by Wallis JA in the case of Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA).  Citing Lord Clarke SCJ in Rainy Sky SA and others v Kookmin Bank [2012] Lloyds Rep 34 (SC), it was emphasized that “the exercise of construction is essentially one unitary exercise” involving a consideration of context and language together.  The approach to be followed is stated as follows by Wallis JA at para 18: 

       “The present state of the law can be expressed as follows:  Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence.  Whatever the nature of the document, consider must be given to the language used in the light of the ordinary rules of grammar and syntax;  the context in which the provision appears;  the apparent purpose to which it is directed and the material known to those responsible for its production.  Where more than one meaning is possible each possibility must be weighed in the light of all these factors.  The process is objective, not subjective.  A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document.  Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used.  To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation;  in a contractual context it is to make a contract for the parties other than the one they in fact made.  The ‘inevitable point of departure is the language of the provision itself’, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document.”

[35]	If one examines the language of the disputed phrase, it is clear that no distinction is drawn between materials of high value or risk and other materials.  If the parties intended that high value or items susceptible to theft were not to be delivered to site, they would undoubtedly have said so in the contract.  Their failure to qualify the word “materials” implies that all materials necessary for the installation of the lifts had to have been delivered to site.  The contract was drafted by the defendant and any ambiguity as to the meaning of the word ‘materials’ must be interpreted in favour of the plaintiff.  This accords with the well-known contra preferentem rule.

[36]	The plaintiff was obliged to pay 90% of the revised contract price on delivery of materials to site.  It is unlikely that the plaintiff would have agreed to pay so substantial a portion of the purchase price without having received all or at least the bulk of the materials that were necessary to complete the installation of the lifts.  That this was the common intention is further buttressed by the provisions of clause 3 of the contract, which reads: 

       “Security of Goods

	Safe storage of the equipment from the time of delivery to site until completion and hand-over will be required.  We will not be liable for any replacement costs in the event of loss or damages due to no fault of ours.   …” 

[37]	Clause 3 requires the plaintiff to keep all equipment delivered in safe storage and renders the plaintiff responsible for any loss or damage and replacement costs.  In this regard, the plaintiff would probably have insured itself against the risk of loss.  The only probable reason for the insertion of clause 3 is because it was envisaged that the plaintiff would take delivery before installation of items of high-value and risk.  The defendant obviously did not want to assume this risk.

[38]	During cross-examination Mr Walls made an important admission concerning the disputed term.  The following exchange is relevant: 

	“So, how should we know what materials was necessary, when necessary before you became entitled to payment?  --- I think you should have asked.
	Oh, we should have asked?  Do you agree with me, Mr Walls, that there is no qualification to the words ‘on delivery of materials to site’? --- Yes, I agree with you, ja.
	It seems to indicate, that all the materials had to be delivered before the defendant became entitled to 90% of the contract [indistinct] --- I agree with you.
	Do you agree with me?  --- Yes.
	Then did you ever deliver all the materials to site?  Even today, up until today, did you ever deliver all the materials? --- No.”  (Record p 436)

[39]	Broadly stated, the following submissions were advanced on behalf of the defendant.  

[40]	It was submitted that evidence demonstrated that the parties had agreed that “materials” would exclude smaller, high value, high risk items such as electrical components which were only to be delivered when they were ready to be installed.  This, it was submitted, was borne out by the evidence and conduct of Volschenk.  On 28 July 2005, the plaintiff addressed a letter to the defendant, in which Volschenk stated the following:

	“I would like to point out to you, again, that not all items are delivered to site.  It is accepted that some small items will be delivered on installation, but bigger items like doors, sliding gates, door frames, safety control mechanisms, etc, are to my mind important … .”

[41]	It was further submitted that Volschenk was a disingenuous and contradictory witness.  Despite the fact that not all items were delivered after the conclusion of the initial quotation, the plaintiff paid exactly 90% of the initial contract price, and a second delivery was made without any objection.  Volschenk opportunistically changed his version as to what should have been delivered.

[42]	It was further argued that the failure to deliver the doors and doorframes was not a material breach of the revised contract justifying a cancellation of the contract.  The failure to deliver these items was a mistake and had the plaintiff at any point demanded delivery of these items, there can be no doubt that the defendant would have delivered them to the plaintiff.  The breach, if any, ought to be considered as “de minimus” and it would be unfair to permit the plaintiff to resile from the contract.

[43]	It was also contended that the fact that the plaintiff did not insist on delivery of the doors and doorframes before paying 90% of the first quote, amounted to a waiver of the plaintiff’s rights.

[44]	In my view, none of the arguments raised can avail the defendant.  

[45]	The contention that the word “materials” excluded high-value or high risk items is, for the reasons that I have already given, not borne out by the language of the disputed phrase.  In this regard, I reiterate what is stated in paragraphs 34 to 37 above.  

[46]	The reliance by the defendant on the plaintiff’s letter dated 28 July 2005 is misplaced.  Volschenk states that some “small items” did not have to be delivered.  He does not say that high-value or high-risk items did not have to be delivered.  There is a marked difference between “small items” and items of high value and risk.  Many of the items referred to by Thompson and which were admittedly not delivered cannot be classified as small items.  

[47]	The alleged waiver cannot be relied on as the defence of waiver was not pleaded or issuably raised during the trial.  

[48]	The contention that the failure to deliver the doors and doorframes is not a material breach justifying cancellation is entirely misplaced.  The plaintiff cancelled the contract because of the defendant’s repudiation in cancelling the contract on 8 February 2008.  The plaintiff did not cancel the contract because of the defendant’s failure to deliver the doors and doorframes.  Based on the principle of reciprocity to which I have referred, the plaintiff was justified in withholding payment because the defendant had failed to fulfil its reciprocal obligation to deliver all or at least the bulk of the materials necessary to complete the installation.  In the circumstances the defendant’s cancellation was unjustified and constituted a repudiation of the revised contract.

[49]	As the plaintiff had validly cancelled the contract by accepting the defendant’s repudiation, it is entitled to repayment of the sum of R283 988.59 against a tender to return the materials and equipment delivered which are still in its possession.  The plaintiff is entitled to mora interest on the aforesaid sum of R283 988.59 from 8 February 2008 to date of payment.

[50]	For these reasons, the plaintiff must succeed on Claim 1 and the defendant’s counterclaim must be dismissed with costs.  

[51]	I turn now to Claim 2.  

[52]	Claim 2 is pleaded as follows in the particulars of claim:

       “As a further result of the defendant’s repudiation and breach of the agreements as aforesaid, the plaintiff suffered further damages, as follows:

	19.1	Plaintiff had a contractual obligation to provide accommodation to its employees and directors, namely Messrs J Volschenk, C Volschenk and JHH Volschenk;

	19.2	The buildings in which the elevators were to be installed could not be occupied during the period 1 June 2007 and 31 August 2009, which were otherwise ready and available for occupation on 1 June 2007;

	19.3	As a consequence the Plaintiff had to purchase a townhouse and rent two other townhouses to provide accommodation for its employees and directors during the aforesaid period;

	19.4	Plaintiff suffered damages in the sum of R678 404,48, being the reasonable costs associated with such purchase and rentals.  The amount is calculated as more fully set out in Annexure ‘C’ hereto, which also contains a reference to the relevant pages of the Plaintiff’s discovered documents.”

[53]	In the further particulars for trial it was alleged that the plaintiff had paid the rent on behalf of Messrs JH and CJ Volschenk and the monthly bond payments of the house of Mr J Volschenk.  They were all employed by the plaintiff and it was part of their conditions of employment that the plaintiff pay for their accommodation.  Those payments fell away as soon as the new houses were able to be occupied after the installation of the lifts.  

[54]	In evidence, Volschenk and the plaintiff’s auditor, Mr Taljaard, testified that it was part of the conditions of employment of the plaintiff’s members that the plaintiff would provide them with accommodation.  They explained that the plaintiff was a small family business and that certain personal expenses such as housing were always paid for by the company.  In order to meet the increased cost of accommodation as a result of the defendant’s breach of the revised contract, the salaries payable to the directors of the plaintiff were increased.  The plaintiff would not have incurred this increased expense had the defendant timeously installed the lifts in the houses under construction.  Both Volschenk and Taljaard testified to the fact that that the increased salaries payable to the directors was an expense that the plaintiff would not otherwise have incurred.  This evidence was not seriously disputed by the defendant and no countervailing evidence was adduced.  

[55]	It was argued on behalf of the defendant that the plaintiff had not demonstrated that there was a prior contractual obligation to provide accommodation for its directors.  I do not agree with that submission.  The defendant’s argument fails to take cognisance of the manner in which companies, and especially small domestic companies such as the plaintiff, operate.  The decisions lawfully taken by the plaintiff’s members are in fact contractual obligations which bind the plaintiff.  There is no reason to reject the evidence that it was part of the conditions of employment of the members that the plaintiff provide them with accommodation.  The defendant’s assertion that there was no prior contractual obligation is not supported.  

[56]	It was also argued that the plaintiff’s evidence materially departed from its pleaded case.  The plaintiff did not, as was alleged in the pleadings and further particulars, purchase a townhouse and rent two other townhouses to provide accommodation for its employees.  What in fact occurred was that the directors’ salaries were increased to pay for the accommodation.  In my view, the point raised by the defendant is immaterial.  On the undisputed evidence the plaintiff had a contractual obligation to pay for accommodation of its employees and directors and it matters not whether it discharged its obligation by increasing the salaries of its directors or purchasing or paying the rent for the properties occupied by the directors.  In either event, this was a loss sustained by the plaintiff in consequence of the defendant’s breach of the contract.

[57]	In my view, the damages claimed flow naturally from the breach by the defendant.  The breach resulted in the lifts not being installed in time, which in turn resulted in the houses not being ready for occupation.  When the contract was concluded, it would have been a natural and foreseeable consequence that whoever was to occupy the houses would not be able to do so until the lifts were installed.  The members of the plaintiff who had to occupy the houses had to seek alternative accommodation and this resulted in the incurrence by the plaintiff of additional costs of accommodation for the members of the plaintiff.  Had the defendant performed its obligations in terms of the contract the lifts would have been installed in time and the plaintiff would not have had to incur the additional costs of accommodation.

[58]	The sum of R678 404.48 claimed as damages is calculated and made up in the manner set out in Exhibit A (p 201).  No meaningful attempt was made by the defendant to dispute these calculations and to adduce countervailing evidence.

[59]	As a consequence of the defendant’s breach, the plaintiff is entitled to an award of damages that would place it in the position that it would have occupied had the contract been properly performed, namely its positive inter esse (see Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Limited 1977 (3) SA 670 (A) at 687C-D)).  There is no suggestion that the plaintiff did not take reasonable steps to mitigate its damages.

[60]	In the result, the plaintiff also succeeds on Claim 2.

[61]	The following order is made:

61.1	Judgment is entered against the defendant in favour of the plaintiff for –

61.1.1	payment of the sum of R283 988.58.  The said sum is to be paid against return of such materials and equipment as are in the plaintiff’s possession, and to which the defendant is entitled;

61.1.2	interest on the aforesaid sum of R283 988.58 at the rate of 15.5% per annum from 8 February 2008 to date of payment;  

61.1.3	payment of damages in the sum of R678 404.48;

61.1.4	interest on the aforesaid sum of R678 404.48 at the rate of 9% per annum from date of judgment to date of payment;

61.1.5	costs of suit.

61.2	The defendant’s counterclaim is dismissed with costs.

							_________________________
							P BORUCHOWITZ J 
							JUDGE OF THE HIGH COURT 
							GAUTENG LOCAL DIVISION,
							JOHANNESBURG 
DATE OF HEARING			:	7 May 2015

DATE OF JUDGMENT		: 	10 July 2015

ON BEHALF OF 
APPELLANT 		:	ADV DT v R DU PLESSIS SC
			
INSTRUCTED BY			:	RETIEF VENTER ATTORNEYS 
				
FOR RESPONDENT			:	ADV  W GIBBS

INSTRUCTED BY 			:	VAN DER MERWE ATTORNEYS 

/002