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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

PARTIES:

ANGELIQUE SHADWELL & 1 OTHER vs TRANSNET LIMITED

REFERENCE NUMBERS -

• Case Number: 3690/06

• High Court: South Eastern Cape Local Division

DATES HEARD: 6 & 7 NOVEMBER 2007

DATE DELIVERED: 6 DECEMBER 2007

JUDGE(S): A.R. ERASMUS

LEGAL REPRESENTATIVES -

Appearances:

• for the plaintiff(s):ADV.P. MOUTON & ADV. AYERST

• for the defendant(s): ADV. T. PATERSON

Instructing attorneys:

• for the plaintiff(s): LEE STRYDOM FOURIE INC.

• for the defendant(s): SWARTS ATTORNEYS

CASE INFORMATION -

• Nature of proceedings : CIVIL TRIAL

IN THE HIGH COURT OF SOUTH AFRICA

(SOUTH EASTERN CAPE LOCAL DIVISION)

Case No: 3690/06

Date heard: 6 & 7.11.2007

Date delivered: 6.12.2007

In the matter between:

ANGELIQUE SHADWELL First plaintiff

VALERIE SHADWELL Second plaintiff

vs

TRANSNET LIMITED Respondent

JUDGMENT

______________________________________________________________

A.R. ERASMUS J:

[1] At the material times the first and second plaintiffs were partners in the self-descriptive business Shadwell’s Cleaning. On 15 December 2003 the defendant accepted a tender submitted by the first plaintiff acting on behalf of the partnership. In terms of the written agreement thereby constituted the plaintiffs undertook to perform certain work between King’s Beach and the harbour entrance at Baakens river, Port Elizabeth. The scope of the work was specified:

‘The area, as shown on plan and approximately 159 033sqm, is to be cleared of all bushes, overgrowth, building rubble and redundant fencing. All alien vegetation or declared/noxious weeds in the area mentioned are to be treated. ’

The plaintiffs duly performed their obligations and are therefore entitled to judgment for the amount owing under the contract, viz R129 780,70.

[2] In a counterclaim the defendant alleges that the second plaintiff caused 52 railway tracks to be cut up and removed from the Humewood railway station, and sold as scrap metal. The tracks were the property of the defendant. In their plea to the counterclaim the plaintiffs aver that during the course of the operations defendant’s representatives indicated to the second plaintiff 48 railway tracks which were to be removed in terms of the agreement. As a result, the 48 railway tracks were cut up and removed from the premises. Accordingly, the plaintiffs plead that they were in law entitled and obliged remove the tracks, under and in terms of the agreement concluded with the defendant.

[3] Neither of the plaintiffs testified to support these averments, nor did they call any witnesses. In his address counsel for the plaintiffs relies solely on the evidence of Mr. A.P. Marais who testified on behalf of the defendant. He submits that Marais told the plaintiffs to clean whole area, which encompassed the location of the railway tracks.

[4] Mr. Marais is an engineering technician in the employ of the defendant in the property management section. He testified that on a site inspection he pointed out to the plaintiffs the work to be done in terms of the contract. In so doing he did not and could not deviate from the contract specifications. He indicated to them the area to be cleaned as specified, i.e. from the King’s Beach parking area to the first harbour entrance. He had no knowledge at the time of the tracks which are the subject of the counterclaim. He only heard of their removal afterwards. The place where they had been stacked was in the area that had to be cleaned. He was cross-examined mainly about redundant fencing that had to be removed from the area. In regard to the missing tracks it was put to him:

‘Nou die tweede eiser, dis mev Valerie Shadwell, sal sê sy het nooit bedoel om spoorstawe te steel nie. Sy het gedink dit is deel van haar plig om dit te verwyder en sy het nie uitgegaan om spoorstawe te steel soos ‘n dief in die nag nie. Sy sê sy het nie bedoel, nooit bedoel om te steel nie. Kan u daarop kommentaar lewer of nie?’

He had no comment.

[5] The removal of the railway tracks was clearly outside the specified scope of work. And nothing in the evidence of Marais either broadened that scope or could have lead the plaintiffs to believe that the removal of the tracks was within the scope of the work to be performed under the contract. Accordingly their removal was wrongful. The agreed value of the tracks is R123 000.00

[6] In the result, the plaintiffs succeed in the claim in convention and the defendant succeeds in the claim in reconvention. The following orders issue:

1. In convention, the defendant is ordered to pay the plaintiffs -

(a) the amount of R129 780,70;

(b) interest on the said amount calculated a tempore morae at the legal rate as of date of summons until date of payment;

(c) costs of suit

2. The first and second plaintiffs are ordered to pay the defendant, jointly and severally the one paying the other to be absolved, –

(a) the amount of R123 000,00;

(b) interest on the said sum at the legal rate from date of

delivery of the of the counterclaim to date of payment;

3. costs of suit.

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A.R. ERASMUS

JUDGE OF THE HIGH COURT

DATE: _______________

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