HIGH COURT OF SWAZILAND
AND N CONSTRUCTION
Case No. 1665/99
MAPHALALA - J
the Applicant MR. NZIMA
the Respondents MR. MABILA
Plaintiff issued summons against the defendants for payment of E9,
000-00 (nine thousand emalangeni) arising out of breach of contract,
it being alleged that the Defendant failed to finish roofing
plaintiff's house as per agreement.
material averments in the Plaintiff's Particulars of Claim are that
on or about the 18th December 1998, the Plaintiff and the 2nd
Defendant entered into an oral agreement in the following terms:
the Defendant lays roofing tiles on the Plaintiff's house at Malkems
at the costs of E18, 990-00.
the Plaintiff pays a deposit of E10, 000-00 to the Defendant before
the work could begin.
the Plaintiff pays the balance of E8, 990-00 on completion of the
the Defendant commences work on payment of the deposit".
parties acted in person when the agreement was concluded. On about
the 14th February 1999, a deposit of E10, 000-00 was paid by the
Plaintiff to the Defendant. The Defendant bought some planks and
nails and partly fixed them on the roof, all amounting in the sum of
El, 000-00. According to the Plaintiff although the Defedant put the
sum used at stage at E3, 500-00.
contends that the Defendant failed to continue with the rest of the
work and thus is in breach of the agreement. In consequence, the
Plaintiff is entitled to cancel the agreement and be refunded the sum
of E9, 000-00 being the deposit paid by the Plaintiff. The Plaintiff
also prays for interest on the said sum at the rate of 9% per annum
tempore morae and costs of suit.
1st Defendant filed a notice of exception that the Plaintiff's
Particulars of Claim as being bad in law and disclosing no cause of
action in that the said Particulars fail to set out the basis of 1st
Defendant's liability under the agreement entered into by and between
the Plaintiff and 2nd Defendant, as the 1st Defendant was at all
times material hereto acting in a representative capacity.
the matter came for trial before me the exception was argued and in
my ruling dated 3rd February 2003 upheld the exception. I further,
ordered that the Plaintiff was to pay costs of the exception. The
trial then proceeded in earnest against the 2nd Defendant.
2nd Defendant had filed a plea where inter alia admits that it
purchased timber trusses, battens, wall plates and ceiling branding
but denies that the total amount thereof was El, 000-00. The 2nd
Defendant avers that the total cost was E2, 000-00, which amount was
inclusive of transport costs in the sum of E200-00. 2nd Defendant
further avers that it erected the trusses, battens, wall plates and
ceiling branding as per agreement. The total labour costs thereof
were E3, 500-00.
gravamen of the 2nd Defendant's defence is that during the course of
January 1999 and in compliance with the terms of the agreement its
employees entered the plaintiff's premises with a view to completing
the roof but were stopped and chased away by the Plaintiff and/or its
agents. The 2nd Defendant's employees were specifically told that
they should not return to Plaintiff's premises until further notice.
The 2nd Defendant denies that it is in any way in breach of the
agreement and is ready and willing to complete erecting the roof as
per agreement. It is the Plaintiff who refused the 2nd Defendant an
opportunity to perform its obligation in terms of the agreement.
Plaintiff led two witnesses and the 2nd Defendant two witnesses. In
essence, the evidence led is two-fold in relation to the dispute
between the parties. The court has to decide mainly on two issues,
namely whether or not the agreement between the parties was breached
and whether or not the Plaintiff is entitled to certain monies out of
Plaintiff in her evidence stated that the Defendant failed to
complete the roofing of her house as per the agreement. The Plaintiff
stated that the Defendant only worked for one week, partly roofing
one side of the house and never continued with the work. Plaintiff
further told the court how she searched for the Defendant and how she
phoned the work place of Arthur Hlatshwayo.
Defendant's defence is that the Defendant's employees were chased
away by the Plaintiff's son. They stated that they were willing to
continue with the work but for the notification by the Plaintiff's
Plaintiff's son was called to testify as PW2 whereupon he denied ever
chasing away Defendant's employees and/or informing them not to
return to Plaintiff's premises until further notice.
Defendant as I have already stated also called two witnesses. DW1
Arthur Hlatshwayo who was the 1st Defendant before the exception was
argued. His evidence in essence is that one of the foremen of the 2nd
Defendant by the name of Raphael was told by PW2 to stop the
construction until further notice. He was cross-examined at some
length by Mr. Nzima for the Plaintiff. The following exchange took
place, which I will allude to later in the course of this judgement.
put it to you that you gave your attorneys instructions that your
employees were chased
further put it to you that the date January 1999, which is in the
papers could not have
because you commenced the roofing in February?
made a mistake".
in re-examination DW1 stated that when he instructed his attorney he
cannot recall the specific dates whether they had started
construction in January or February.
2nd Defendant's witness was one DW2 Thomas Raphael. He was foreman
involved in the construction of the roof in PWl's homestead. He told
the court that they did not finish construction as they were stopped
by Plaintiff's son. That the son told them to stop work and that they
were to be re-called in due course. At that time they had completed
putting the planks and were only left with putting the tiles. He then
communicated this to DW1.
was cross-examined at some length by counsel for the Plaintiff. The
witness maintained under cross-examination that PWl's son was the one
who gave them the instructions to cease construction until further
the matter came for arguments Mr. Nzima filed Heads of Argument. He
contended, firstly, that what is worthy of note from the Defendant's
evidence is that it is conceded that the Defendant's employees
disappeared for sometime from the work place due to lack of material.
The evidence shows that the Defendant's employees failed to continue
with the work as agreed and the defence of chasing away is only a
cover up for the breach. It is also the Defendant's evidence by DW2
that they were short of material, but DW2 informed the court that he
told DW1 because he was dealing with him.
it was contended on behalf of the Plaintiff that the Defendant's
allegations that they were chased away from the premises by
Plaintiff's son should not be considered as true because PW2 came
before court and denied the allegations. Furthermore, the name of PW2
was mentioned for the first time here in court because the
Defendant's saw him on the first day of the hearing of the matter.
it was argued that it has not been shown in evidence that PW2 was
Plaintiff's agent and/or had authority to act on behalf of the
Plaintiff because the Plaintiff was dealing directly with the
it was contended on behalf of the Plaintiff that it is conceded by
the Defendant that a sum of E10, 000-00 was received. It is further
conceded that the work constructed upon them was not finished. The
Defendant allege to have used a sum of E5, 500-00, E2, 000-00 being
material and E3, 500-00 being labour costs. It has also transpired in
evidence by the Defendant that they paid their (3) employees a sum of
E25-00 each and one was paid E30-00 a day when one calculates these
amounts in two weeks or 14 days, they do not even reach E1, 500-00
and one wonders, so the arguments ran, how the sum of E3, 500-00 was
Mr. Nzima submitted that the Plaintiff has proved her case on a
balance of probabilities and is entitled to judgement in the sum of
E9, 000-00. It is trite law that a party whose rights have been
infringed is entitled to compensation and/or to be put in the same
position he/she was before the infringement. To support this
proposition Mr. Nzima cited the works of Willie and Millins
"Merchantile Law of South Africa" 1984 (18th ED) at page
125 and Ellison Hahn, "Contract and Merchantile Law", 1988
(2nd ED), at page 675 - 695 and 711 - 714.
Mabila on the other hand advanced arguments per contra. The thrust of
Mr. Mabila's submissions revolves around an argument that the
Plaintiff elected not to replicate and deny the defence traversed by
the Defendant. The defence in Defendant's plea that it had been
prevented by Plaintiff and/or its agents from performing its
obligations in terms of the agreement and further indicated its
willingness to complete the project. The court was referred to
Herbstein and Van Winsen - The Civil Practice of the Supreme Court of
South Africa, Polo Dlamini vs Martha Nsibandze H.C. Case No.
1581/2000 and also Matiwane vs Minister of Police 1979 (3) SA. 312
(E) at 313H -314A. In short the submission is that in casu, the
Plaintiff failed to replicate to the absolute defence raised by the
second leg of Mr. Mabila contention is that on the pleadings before
court and on the evidence presented in court, the Defendant was not
in breach as it has presented a lawful excuse for not completing the
work. He cited the work by Willie' Principles of South African Law -
Hutchson et al (8th ED) p. 505. The Plaintiff has failed to allege
and prove that there was a breach on the part of the Defendant i.e.
it has failed to discharge the onus resting on it for the relief
sought. What we have is a situation whereby the Plaintiff prevented
performance thus making it impossible for the Defendant to perform.
(see R.H. Christie - The Law of Contract in South Africa (3rd ED)
page 550). In the circumstances the Plaintiff cannot benefit from its
wrongdoing or action. Mr Mabila cited the following from R.H.
Christie (ibid) to support this argument:
party who has caused the other's breach by making it impossible or
nugatory to perform or by failing to cany out the necessary
preliminaries which rest upon him cannot found any claim on the
breach he has thus precipitated and may himself be liable for breach
on implied term..."
Mabila 's final salvo was that generally, in terms of our law, the
chief remedy for breach is an order for specific performance since
the object of the injured party in making the contract was to obtain
some specific benefit, and not the extinction of the contract, or
pecuniary compensation (see Willie's Principles of South African Law
(supra) p. 515). In casu, the only inference to be drawn from the
Plaintiff's failure to claim for specific performance is that she
acknowledges that she is the one who prevented performance and also
that she was aware that she acknowledges that she is the one who
prevented performance and also that she was aware the Defendant has
always been willing to carry out its obligations in terms of the
agreement and this is buttressed by her conduct of not denying
allegations raised in the plea and not denying ever authorizing
anyone to act as her agent.
are the issues before court. I have considered the arguments advanced
in this case. It is common cause that on or before the 18th December
1998, the Plaintiff and the 2nd Defendant entered into an oral
agreement that Defendant lays roofing tiles on the Plaintiff's house
at Malkerns at the cost of El8, 990-00. That the Plaintiff pays a
deposit of E10, 000-00 to the Defendant before the work begins. That
the Plaintiff pays the balance of E8, 990-00 on completion of the
work. That the Defendant commences work on payment of the deposit. It
is further common cause that the Plaintiff when she entered into this
oral agreement represented herself and the 2nd Defendant was
represented by DW1 Arthur Hlatshwayo.
is further common ground that on or before the 14th January 1999 a
deposit of E10, 000-00 was paid by the Plaintiff through her daughter
to Arthur Hlatshwayo who represented the 2nd Defendant. Another point
of common ground is that the Defendant bought some planks and partly
fixed them on the roof. There is however, a point of divergence as to
the value of the planks bought by the Defendant. For present purposes
this of little consequence. The 2nd Defendant did not finish the work
it was contracted to do.
crucial question which the court has to answer is - why? If the court
agrees with the Plaintiff's version of the reason why the court then
has to grant judgment in her favour. However, if the court agrees
with the 2nd Defendant's version that it was the Plaintiff who
prevented the 2nd Defendant from completing the work then the court
has to dismiss the action. The answer to this vexed question lies in
the evidence presented for and against the action. It would appear to
me that on a balance of probabilities the version given by the
Plaintiff is more plausible than the one given by the Defendant. It
was not shown in evidence that PW2 was Plaintiff's agent and/or had
authority to act on behalf of the Plaintiff because the Plaintiff was
dealing directly with the Defendant. The question that boggles ones
mind is why would a third party come in and change the terms of the
agreement. Further why would the Plaintiff herself after having her
roof opened up to the elements, for no apparent reason instruct PW2
to stop people from working on a project which she had paid a deposit
of E10, 000-00? Why would she act against her own interest after she
had invested so much money? To me on the basis of pure logic and
human nature the defence advanced by the Defendant is untenable in
the circumstances of the case.
it is worthy of note from the Defendant's evidence that it is
conceded that the Defendant's employees disappeared for sometime from
the work place due to lack of material. Another curious aspect in
Defendant's evidence is that 2nd Defendant paid their (3) employees a
sum of E25-00 each and one was paid E30-00 a day. When one calculates
these amounts in two weeks or 14 days, they do not reach El, 500-00
and one wonders how the sum of E3, 500-00 was reached.
in the present case the Plaintiff could not have sought for an order
for specific performance because subsequent to the disappearance of
the 2nd Defendant she engaged other roof makers who have since
completed their job to her satisfaction.
sum, I find that both the Plaintiff (PW1) and her son (PW2) were
credible and truthful witnesses and I have no reason to disbelief
their version of events. On the other side of the coin DW1 when
giving evidence was cagey in a number of material respects and the
evidence of DW2 did not advance the Defendant's case in my
estimation. Therefore on a balance of probabilities the Plaintiff is
entitled to judgement in this case.
a consequence, the following order is accordingly recorded:
contract entered into between the parties is cancelled forthwith;
to pay the sum of E9, 000-00 being a refund of the deposit paid, less
the amount used;
thereon at the rate of 9% per annum tempore morae; and