---

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

(1)     REPORTABLE: YES / NO

(2)     OF INTEREST TO OTHER JUDGES: YES/NO

(3)     REVISED.  

 

CASE NO:  A5028/2018

In the matter between:

 

MOVING VIOLATIONS SYSTEMS PHUMELELO (PTY) LTD                Appellant

 

and

 

THE CITY OF JOHANNESBURG

METROPOLITAN MUNICIPALITY                                                            Respondent

 

JUDGMENT

 

INGRID OPPERMAN J

INTRODUCTION

[1]          This is an appeal against the dismissal of an application for the payment of   R 8 086 720.66, interest and costs.

[2]           The issues in the appeal can best be understood against the broad historical canvas from which the litigation ensued and then to trace the twists and turns of the litigation itself.

The contractual backdrop

[3]             The Respondent is, amongst other things, tasked with the enforcement of traffic rules and laws in its geographical area of responsibility.  The geographical area is comprised of a number of magisterial districts, one of which, Roodepoort, is of primary relevance herein.  At issue is the policing of what is known as moving violations, which includes obtaining evidence of speeding traffic offences.

[4]               One of the places in the Respondent’s area, where many motorists exceed the speed limit, is the Misgund Intersection (where the N1 Musina – Cape Town national road links up to the N12 regional road which runs to and from Potchefstroom).

[5]             The Respondent has over a number of years appointed contractors (through tender processes) to provide photographic evidence of moving traffic violations.  The contractors are appointed for specific magisterial districts where they deploy speed cameras, which are operated by officials of the Respondent. They also have to extract the photographic evidence from the cameras and prepare and steer the processes through the court system.

[6]             Up to January 2009, speed violations were prosecuted under the Criminal Procedure Act 51 of 1977, as amended (“the CPA”).  During this period the appellant (and the other relevant contractors) were entitled to a fixed initial fee that was earned when the speed violation was captured on the Respondent’s database.  A second payment, called a bonus, was paid if the prosecution was successful (“the two-payment system”). “Success” in this context meant that the fine was paid. If the fine was not paid, no bonus was payable. The relationship between the Respondent and the service providers amounted to the division of the income generated by the traffic fines. 

[7]             In January 2009 a new system of administrative regulation of traffic violations was introduced – the so-called “AARTO system” (the Administrative Adjudication of Road Traffic Offences Act 46 of 1998).  The two-payment system could not be applied under AARTO and the payment rules changed. This case concerns only the position under the CPA.

[8]             During the period 2008 to 2009 the Respondent had contracted three companies to provide the aforementioned services of which the Appellant was one.  The Appellant was specifically appointed for the Roodepoort Magisterial District whilst TMT (Pty) Limited (“TMT”) was appointed for the Johannesburg Magisterial District.  The Respondent appointed the Appellant in a contract that was known as a “Service Level Agreement” or “SLA”. The parties entered into the contract during November 2006. It included the two-payment system.

[9]             The trouble that led to the litigation is the result of a common error.  Everyone thought that the Misgund intersection fell within the Roodepoort Magisterial District whilst it actually fell within the Johannesburg Magisterial District.  Unaware of the true facts, the Appellant captured a vast number of speeding violations at the Misgund intersection and put them in the Roodepoort Magistrates Court system for processing.

[10]          The Roodepoort Magistrates Court did not have jurisdiction over these infringements.  Precise numbers are unknown but it appears that there were about 400 000 such cases. These cases were legal nullities and no fine revenue could legally be collected from them for and on behalf of the Respondent. There was no revenue to share with the Appellant.  The consequence of this was that the Respondent would suffer a dead loss if it were to pay the Appellant bonuses against these infringements.

The withdrawals

[11]          The senior magistrate in Roodepoort discovered the fact that the 400 000 cases fell outside the jurisdiction of his court, and he ordered that they be removed. The only way in which they could be removed on an industrial scale, was to indicate, on the electronic information technology system that the Respondent used to process fines and prosecutions, that they were “withdrawn”.  The “withdrawn” indicator, however, had a special effect on the payment due by the Respondent to the Appellant – in terms of their SLA the “withdrawn” tag, indicated a matter that had been properly captured and processed by the Appellant but that the prosecuting authority had decided not to prosecute (for instance on compassionate grounds).  The Respondent would thus forgo the right to the fine revenue that, but for the withdrawal, would have been paid. It would obviously be unfair for the Appellant to forfeit its bonus where a matter was genuinely withdrawn (the Appellant had done everything to generate the fine revenue which the prosecutor, in his or her wisdom, decided to forgo) and the withdrawals (due to falling out of jurisdiction) were consequently erroneously deemed to be paid for purposes of calculating the Appellant’s bonuses.

[12]          The Respondent caused about 200 000 of the Misgund cases to be withdrawn before the advent of the AARTO system and, ignorant of the jurisdiction issue and uncritically, in error, paid the bonuses that these withdrawals related to.

The advent of AARTO

[13]          The AARTO system abolished the CPA bonus system.   A new two-step fixed payment system to contractors was brought in under AARTO.

[14]            The last payment that the Appellant claimed under the CPA system was based on an invoice for February 2009 of R8 086 720.66 (“the February 2009 invoice”).

[15]          To cater for the payment of bonuses for the withdrawals of the remaining approximately 200 000 Misgund cases, the Appellant requested the company that managed the information technology platform for the Respondent (“Civitas”) to produce a certificate reflecting the CPA withdrawals (notwithstanding the advent of AARTO). The Appellant translated the Civitas certificate into an invoice for about R50 million. Thus, whilst the Respondent received no fine revenue from the withdrawal of the 400 000 Misgund cases, the Appellant, relying on the quirk of the SLA that deemed a prosecutorial withdrawal to be a paid matter, claimed a bonus payment of R50 million.  The R50 million would be an out of pocket expense for the Respondent and not the division of fine revenue. The Respondent refused to pay this invoice.

The arbitration

[16]           This prompted the Appellant to claim payment of the R50 million invoice as specific performance under its contract with the Respondent. As there was an arbitration clause in the 2006 SLA, the matter went to arbitration.

[17]          In paragraph 72 of the Appellant’s founding affidavit, the following is stated:

‘It was always accepted and understood by all that annexure “P” (the disputed invoice) replaced the February 2009 invoice, that the amount of R8 086 720,66 was included in the disputed amount….’ Reference to the disputed invoice is the  R50 million invoice.

[18]          A foundational allegation in the Appellant’s statement of claim was that it had performed the services relating to the 200 000 cases in the area for which it had been appointed, namely that of the Roodepoort Magisterial District. The Respondent denied the obligation to pay, on the basis of the exceptio non adempleti contractus and because the principle of reciprocity applied.

[19]          Early on in the arbitral proceedings, the Respondent (then still believing that the February 2009 R8 million invoice concerned matters for which the Appellant was entitled to payment) tendered to pay the R8 million invoice.  The Appellant did not accept the tender (which had been made in terms of rule 34 of the Uniform Rules).

[20]          The arbitrator eventually found that the Appellant was not entitled to payment for the Misgund intersection matters that were placed in the Roodepoort Magistrates Court and which had been withdrawn from that court for want of jurisdiction.

[21]            The Appellant took the matter on appeal to an arbitral appeal tribunal which dismissed the appeal.

The High Court application

[22]          After the appeal, the Respondent withdrew the rule 34 offer to pay the           R8 million invoice because it had transpired during the course of the arbitration proceedings that the infringements underlying that invoice were all Misgund intersection matters, wrongly placed in the Roodepoort court system and outside of the area for which the Appellant was appointed to render services.  There could thus not be a contractual claim for these infringements.  The Respondent had unwittingly, but wrongly, made payment to the Appellant of about 200 000 cases before the end of the CPA period (but excluding the cases in the February 2009 invoice) to which the Appellant was also (for the same reason) not entitled to payment.

[23]          The Appellant then brought the present application in which it claimed payment of the R8 million invoice.  The point was made in the answering papers that the R8 million invoice was subsumed into the R50 million invoice, which had been litigated to finality in the arbitration and therefore the decision in those proceedings was res iudicata. Apart from the res iudicata defence - and if the R8 million invoice was not part of the R50 million invoice, then (the answering papers pointed out) -  the cause of action based on that invoice had arisen in 2009 and had by the time that the application had been instituted at the end of 2016, such ‘debt’ had long since prescribed. Malungana AJ dismissed the application.  The Appellant now appeals against the dismissal.

APPELLANT’S CAUSE OF ACTION

[24]          The Appellant’s cause of action in the application is not altogether apparent from the founding affidavit.  There are three candidate causes of action pleaded by the Appellant in its founding papers:

24.1.       the contract in terms of which it had rendered services – the SLA;

24.2.       the invoice that it had issued for R8 086 720,06 in February 2009;

24.3.       admissions that were made by or on behalf of the Respondent during the arbitral proceedings.

[25]          The court a quo understood the cause of action to be of the type referred to in paragraphs 24.1 and 24.2 hereof and dismissed the application, primarily, on the ground of res iudicata.

[26]          The case argued on appeal relied exclusively on the cause of action referred to in paragraph 24.3 hereof.

General principles relating to causes of action

[27]          Before dealing with the admissions, it is perhaps apposite to deal with some general principles.

[28]          Apart from special statutory remedies, our civil law jurisprudence knows only of four common law causes of action namely contract, delict, enrichment and the negotiorum gestio. Statutory causes of action are a different matter and do not arise for consideration here. It is plain that the appellant’s cause of action cannot be delictual, based on the negotiorum gestio, nor based on enrichment and this was not  suggested during argument.

[29]          A party relying on a contract is obliged to allege and prove the contract which includes the essentials of alleging when the contract was entered into, where it was entered into, by whom it was concluded, and whether it was oral or in writing. In addition, the claimant is also required to attach true copies of the contract (if in writing) to the pleadings and allege its terms - which have to be proven to succeed with the claim. The terms may of course be express, tacit or implied, but they must be pleaded and proven.[1] One searches the founding affidavit in vain for compliance with these fundamental requirements.

[30]          An analysis of the facts also disprove that there could have been a contract at all because there simply was no consensus established by the twin elements of a contract in respect of the Misgund intersection offences, namely offer and acceptance. To find an agreement, there is normally an offer and an acceptance thereof and these must appear from the evidence. In our law a contract is based upon mutual agreement. As a matter of law, if an offer is not accepted in its precise terms, such an offer may be withdrawn.

Acknowledgement of indebtedness

[31]          The Appellant relies on Adams v SA Motor Industry Employers Association, 1981 (3) SA 1189 (A) at 1198 B for the proposition that the claim preferred in this case is a new cause of action (in fact, 7 distinct causes of action) wholly independent of the SLA or the February 2009 invoice, it is, says Appellant, an acknowledgement of debt. This is not what Adams and the later cases dealt with. Adams’ case underlined the proposition that where there is an underlying contractual relationship between parties it may be strengthened by a later contractual relationship, for example where there is an underlying debt based on a contract and a cheque is then given to pay the contractual debt. The creditor then has two possible claims against the debtor i.e. a claim on the ‘cambial agreement’ created in the cheque or a claim based on the underlying agreement. Where there is no underlying agreement and a cheque is given, there is also no cambial agreement. An acknowledgement of debt must always be grounded on a debt and, absent a debt, the acknowledgment is without any legal force.[2]

[32]          In Chemfos Ltd v Plaasfosfaat (Pty) Ltd[3] Miller JA summarised the state of our law in this regard as follows:

“In Adams v SA Motor Industry Employers Association  1981 (3) SA 1189, this Court was required to consider the situation which arises, according to law, when an existing obligation to pay the balance of the purchase price under a deed of sale has been followed by an acknowledgment of debt in respect of such balance. The issue related to the competence of the creditor to cede to a third party his claims under the deed of sale. Addressing himself to the general principles governing such a situation, JANSEN JA said (at 1198) that

     ‘ an acknowledgment of debt, provided it is coupled with an express or implied undertaking to pay that debt, gives rise to an obligation in terms of that undertaking when it is accepted by the creditor’.

After pointing out that it was fallacious to consider that an admission in respect of an existing debt could not found an independent, new cause of action unless it amounted to a novation, JANSEN JA said (on the same page at E - F):

 ‘The decisive question is whether the acknowledgment contains an express or implied undertaking to pay, a matter which relates to the intention of the parties.’

 

The decisiveness of the intention of the parties was again emphasized at 1198H and at 1199A - C. Such emphasis was not misplaced for it is important not to lose sight of the fact that the creation of a new obligation in respect of an existing debt necessarily postulates a new agreement - a new consensus.”

 

[33]          The court expressly found that Wessels JA In Divine Gates and Co Ltd v Beinkinstadt & Co, 1932 AD 256 when stating the law to be “If a defendant says he admits the correctness of an account, but fails to pay, he can be sued”, was wrong.[4] It was stated that Wessels JA was influenced by the practice which then existed in England[5]. Our law is, that for the creation of a new cause of action, the admission of indebtedness is required expressly or impliedly to embrace an undertaking to pay the admitted debt and thus an acceptance thereof in order to create a new agreement – a new consensus.

[34]          It seems to us that what may have been conflated in this matter were the principles pertaining to the interruption of prescription i.e. those principles applicable when an admission could interrupt the running of prescription in respect of an existing cause of action and those principles applicable to the formation of an agreement. At best for the appellant, the facts reveal that the Respondent impliedly or even expressly, undertook to pay. These offers were never accepted and that is the end of that enquiry.

THE ADMISSIONS 

[35]          The Appellant has isolated seven “admissions” that serve as the bedrock for its claim.  In what follows, they are analysed.

The September 2010 offer

[36]          During September 2010 the Respondent offered on a “without prejudice basis” to pay the Appellant R10 037 125. The object of this offer was to compromise whatever debt the Respondent mistakenly believed to have been owing to the Appellant at the time. This was in absolute ignorance of the fact that the violations in question were Misgund intersection violations that had been withdrawn and for which the Appellant had no legal claim under the SLA. Apart from the fact that this was a settlement proposal, which ought not to have been disclosed to the court, it was rejected. This offer was made at a time when the R8 million claim had been subsumed into the R50 million claim.

Rule 34 offer                                                                      

[37]          On 13 December 2013, the Respondent made an unconditional offer of settlement in terms of rule 34 of the Uniform Rules of Court to pay the R8 million to the Appellant.  The offer was based on the R8 million invoice.

[38]            Our law recognizes the fact that an offer may be withdrawn before it is accepted and thus does not give rise to a contract.[6] The Respondent was free to revoke the tender before it was accepted, which it did on 25 July 2016.  Upon its revocation, no obligation (to perform if its offer was accepted) remained binding on the Respondent.

[39]          The Appellant does not allege that the offer was ever accepted. Upon its withdrawal on 25 July 2016, there was no longer any offer to accept and no cause of action was thereby created.

[40]          To the contrary, the appellant’s Mr Botha testified in the arbitration that had he accepted the offer, it would have compromised the rest of the claim. It was accepted during argument that the offer which had been made was unconditional and the acceptance thereof would not have compromised the balance of the claim. What was also accepted as correct in law was once the offer was rejected, the appellant could not fall back on it: the offer neither created a cause of action nor did it fix a minimum liability in the amount offered.[7]

Director Gerneke’s statement under oath in the arbitration proceedings

[41]          On or about 18 March 2014, during the arbitration proceedings, one Gerneke (the Respondent’s authorised representative) stated the following under oath in the answering affidavit filed on behalf of the Respondent in a rule 35(7) application:

“40.I would suggest that this whole case concerns one unpaid certificate that was issued by Civitas.  It is the very last certificate that Civitas issued under the CPA regime and reflects the amount due by the respondent to the Appellant up to the end of January 2009. I attach a copy of that certificate together with an invoice that the Appellant prepared hereto as annexure ‘A’.  The Appellant has not claimed payment under annexure ‘A’.  The respondent has, however, tendered payment of the amount reflected in annexure ‘A’ as appears from annexure ‘B’ hereto.” 

[42]          This was the rule 34 offer not accepted and subsequently withdrawn.

Mr Blignaut – Representative of Civitas

[43]          At the arbitration proceedings and during 20 to 23 July 2015, Mr Blignaut, an employee of the Respondent’s subcontractor Civitas, acknowledged that if the last certificate had not yet been paid, it should be paid.

[44]          Mr Blignaut was not an official or employee of the Respondent and there is no allegation that he had any authority to bind the Respondent when he testified that, in his view, the R8 million invoice had to be paid. In addition, the statement was made only in reply. The Respondent did not have the opportunity to deal with it. Even if  Mr Blignaut could speak for the Respondent, which he could not, his opinion would be worthless as evidentiary material of a contract between the Respondent as offeror and the Appellant as offeree in terms of which the former should pay the latter        R8 million.

Counsel’s acknowledgment during cross-examination

[45]          During the arbitration proceedings it was acknowledged (through statements put to the Appellant’s main witness, Mr Botha, by senior counsel representing the Respondent) that the Respondent acknowledged its liability to pay the R8 million to the Appellant by putting to Botha:

 

“…trek omtrent R8 miljoen af wat my kliënt erken dat hy aan u aanspreeklik is; u onthou … hierdie bedrag was nog altyd aan u getender en daar is nie ‘n kwessie daaroor nie”.[8]

 

[46]          What was put to Mr Botha is that the R8 million claim was (at that stage still) subject to the rule 34 tender. Counsel for the Respondent said:

“As my kliënt konsekwent wou wees en sê dat, ook vir die gevalle waar daar terugtrekkings was voor Januarie 2009, die Teresa Kleynhans-hulle terugtrekkings in 2008, kon daar dalk ‘n teeneis gewees het maar daar is nie in hierdie saak ‘n teeneis nie, as ons konsekwent wou wees en aanvaar dat u die betaling op geregtig is tot en met Januarie 2009, soos gesertifiseer deur Civitas en dit is omtrent R9 miljoen wat uitstaande is, is ek reg?”[9]

[47]          Counsel for the Respondent did not during cross-examination admit liability for the R8 million claim – the converse is true, counsel pointed out that all amounts that had been paid relating to the withdrawals were susceptible to a condictio and that, consequently, because the R8 million invoice also related to Misgund matters, the invoice was bad.

Admission in heads of argument to the arbitrator a quo

[48]          On or about 28 July 2015, in the heads of argument submitted by the Respondent’s senior counsel to the arbitrator a quo, the following was submitted:

“It must be stressed that there was no debt due in terms of the CPA regime as at 31 January 2009 other than the 5 February 2009 certificate … and the tax invoice that MVS prepared as a result thereof… showing an outstanding balance of R8 086 720,66.”

[49]          The rule 34 offer was withdrawn a year later on 25 July 2016. That put an end to that potential contract.

Admission in heads of argument to the arbitration appeal tribunal

[50]          On or about 4 July 2016, in the heads of argument submitted by Respondent’s senior counsel to the appeal tribunal, it was stated:

“15.   To give effect to the abandonment of the old scheme, the computer service provider (Civitas Data Services Ltd ‘Civitas’) issued closing certificates to the service providers for final payment under the old CPA system.  This happened during February 2009.  A final certificate was indeed also issued for MVS.  The JMPD does not dispute that it owes MVS payment under the final Civitas certificate.” 

[51]          The rule 34 offer was open at that time. It was not accepted. On 25 July 2016, it was withdrawn.

NATURE OF THE DISPUTE RESOLVED BY THE ARBITRATION

[52]          The appellant argued that the dispute dealt with in the arbitration is not the one which fell for consideration in the court a quo and that it accordingly erred in this regard. This was so, the argument ran, because it was common cause that the CPA system terminated on 31 January 2009 and that the AARTO system was introduced with effect from February 2009. 

[53]          It was always the Respondent’s case that the introduction and commencement of AARTO since February 2009 resulted in the payment provisions of the agreement being amended to abandon the success rate bonus scheme in terms of the CPA system and to substitute therefor payment of a fixed amount for every penalty processed and paid, as had already been envisaged during or about October 2006.

[54]          All the invoices submitted by the Appellant for services rendered from the inception of the SLA until 31 January 2009, excepting one invoice for R50 591 010,06 (“the R50 million invoice”) were paid by the Respondent. The R50 million invoice was preceded by the February 2009 invoice which invoice was based on a certificate issued by the entity Civitas, in accordance with the provisions of the SLA.

[55]          The Appellant withdrew the February 2009 invoice and substituted it with the R50 million invoice, which amount was not calculated on the basis of an “official” Civitas certificate, but on a document styled “dummy certificate”.  The dummy certificate also originated from Civitas. The effect of the dummy certificate was to increase the Appellant’s claim from R8 million to a claim for R50 million as a result of the inclusion in the dummy certificate of approximately 200 000 violations (“the disputed violations”) captured onto the Appellant’s cameras by the Respondent’s officials prior to the commencement of the AARTO system, but which were only finally processed onto the Ciprus system for payment after the AARTO system had commenced.

[56]          Insofar as the disputed invoice representing the Appellant’s claim for            R 50 million was concerned, the Appellant alleged, inter alia, that the 200 000 disputed violations were captured onto the Appellant’s cameras, processed in accordance with the provisions of SLA out of the Roodepoort Magistrate’s Court and ultimately withdrawn by the court before the commencement of the AARTO system; those violations were legitimately withdrawn by the Respondent and/or the relevant prosecuting authority (Roodepoort Magistrate’s Court) before the commencement of AARTO but only processed as withdrawn violations onto the Ciprus system by the Respondent’s officials after the commencement of AARTO; because the Appellant processed those  violations  before the commencement of AARTO, the Appellant was entitled to be paid for the services relating to those violations in accordance with the payment formula applicable under the CPA system; the final processing of the disputed violations by the Respondent’s officials onto the Ciprus system after the commencement of AARTO, did not disentitle the Appellant from being paid for the services rendered in respect of those violations in accordance with the payment system under the CPA system.

[57]          It is the Appellant’s case that it is entitled to payment of the R8 million because no dispute relating to the R8 million was formulated for determination in the arbitration proceedings, neither were the facts and/or the nature of the Appellant’s claim for the R8 million considered in the arbitration proceedings.

[58]          Paragraphs 9 and 10 of the statement of claim in the arbitration proceedings read:

9. The Claimant complied with all its obligations in terms of the agreement and the extension agreement (collectively referred to hereinafter as “the agreements”) and, in particular, the Claimant rendered the services to the Defendant in accordance with the provisions of the agreements.

10. The Defendant did not comply with its obligations in terms of the agreements and, in particular:

10.1 The Defendant did not pay to the Claimant the agreed service fees it was entitled to for the period 1 November 2006 until 31 January 2009 for the services rendered by the Claimant in respect of the Roodepoort magisterial district.

10.2 During or about June 2007 and January 2008 respectively the Defendant unlawfully and unilaterally reallocated the areas known as the N1/Golden Highway crossover and the N1/N12 West Misgund intersection, both areas forming part of the magisterial districts which was exclusively allocated to Claimant as the magisterial districts within which the Claimant would provide the services, to another service provider.

10.3 The Defendant did not communicate with court personnel in respect of issues which have a bearing on the terms of the agreements.

10.4 The Defendant did not take all the necessary steps to ensure compliance with the provisions of the prevailing legislation to give effect to the terms of the agreement.’ (emphasis provided)

 

[59]          The pleadings, which define the issues, suggest that all services rendered during the period 1 November 2006 and 31 January 2009 in respect of the Roodepoort Magisterial District were in issue. The appellant argued that the former February 2009 invoice, rolled up into the R50 million invoice, ran alongside the          200 000 disputed violations and was not ruled on.

[60]          Accepting, without finding, that the February 2009 invoice can be excised from the remainder of the claim and was not adjudicated upon, then, the appellant faces the difficulties relating to the formulation of its cause/causes of action as our law does not recognise as a cause of action the free-floating admissions construction sought to be advanced in these proceedings.

[61]          It would appear that this construct was resorted to, to navigate through what counsel for Respondent referred to as ‘the Scylla and Charybdis’ – the twin dangers - of prescription and res iudicata. If such claim was part of the arbitration proceedings, it has been decided against Appellant. If it was not, the claim has prescribed. If it was part of the R50 million claim but erroneously not ruled on, the remedy lies elsewhere, but not at Respondent’s door.

[62]          The case arbitrated was simply about whether the appellant, who sued for specific performance, had brought itself within the terms of the SLA.[10] The SLA, read with the Appellant’s letter of appointment, were the only sources of the parties’ rights and obligations at the time that the arbitration proceedings were commenced.  The Appellant bore the onus of proving that it had complied with its obligations under the SLA and that it had brought its claim for payment under the SLA. It had to prove that the work it performed, fell within the contract and for that to happen the work had to have been performed within the contractually defined area, the Roodepoort Magisterial district. The Misgund intersection does not fall within such area and the work done cannot be said to have been done in terms of the contract, differently put, the exceptio non adempleti contractus[11] was successfully raised as that which had to be performed before the counter-performance (payment) was due. However one analyses it, the Appellant has no legal basis for claiming payment of the R8 million once tendered to it.

 

ORDER

[63] I accordingly grant the following order:

The appeal is dismissed with costs including costs consequent upon the employment of two counsel, such costs to include the costs incurred in respect of the application for leave to appeal.

 

 

                                                                                         I OPPERMAN

                                                                          Judge of the High Court

                                                       Gauteng Local Division, Johannesburg

 

                                                                                            

 

                                                                                                          I agree

 

                                                              

                                                                                                  B VALLY

                                                                          Judge of the High Court

                                                       Gauteng Local Division, Johannesburg

 

 

 

 

I agree

 

 

                                                                 

                                                                                                   L WINDELL

                                                                                Judge of the High Court

                                                          Gauteng Local Division, Johannesburg 

 

 

                                                                

  

 

 

Heard: 18 February 2018

Judgment delivered: 16 April 2019

Appearances:

For Appellant:  Adv HF Geyer

Instructed by:  Bieldermans Inc

For Respondent: Adv PF Louw SC

                            Adv TK Manyage

Instructed by: Kunene Ramapala Inc

 

 

 

 

 

---