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IN THE NORTH WEST HIGH COURT

MAHIKENG

 

CASE NO.: 1514/2013

In the matter between:

J R PROPERTIES CC                                                                                              Plaintiff

and

ESKOM HOLDINGS LIMITED                                                                             Defendant

CIVIL MATTER

 

DATE OF HEARING           :         29/2-1/3 and 5,6,7/9/2016

DATE OF JUDGMENT       :         15 DECEMBER 2016

FOR THE PLAINTIFF         :        Adv. G.V. Maree

FOR THE DEFENDANT     :         Adv. S. Chitando

 

JUDGMENT

 

KGOELE J:

[1] This is an action instituted by the plaintiff wherein it claims:-

(i) Payment of the amount of R231 000-00;

(ii) Interest on the above mentioned amount at the rate of 15.50% per annum to date of final payment;

(iii) Cost of suit.

[2]  The plaintiff, who is the owner of Erf. 2936 Golfview alleges that the defendant, a supplier of electricity to the area, failed to timeously connect electricity to its eleven residential units and had as a result suffered a loss of rental income for the months of December 2012, January 2013 and February 2013. The action is opposed.

[3]  The matter was heard on the 29^th February – 1^st March 2016 and again on the 5^th, 6^th and 7^th September 2016 where-after judgment was reserved.  The parties agreed that they will exchange written submissions and file them with this Court by the 28^th October 2016 where-after judgment can be delivered.  In the meantime on the 20^th September 2016 the defendant filed a Notice requesting reasons for the dismissal of its application for absolution by this Court on the 6^th October 2016.  The reasons thereof were handed down on the 28 October 2016.  I finally received the last set of the written submissions on the 11 November 2016.

[4]  The plaintiff called two witnesses to testify on its behalf.  The summary of the evidence of Mr Lewis who was the first witness was as follows:-  The plaintiff applied to the respondent to be supplied with a new service for electricity to its eleven residential units.  On or about the 31^st January 2012 plaintiff, after accepting the final quotation from the defendant, paid defendant the sum of the amount for the up-front connection being R117 725.08 (one hundred and seventeen seven hundred and twenty five rand and eight cents) inclusive of the amount for security deposit being R15 285.00 (fifteen thousand two hundred and eighty five rand).  The total of the said amounts were R133 010.08 (one hundred and thirty three thousand and ten rand and eight cents).  When plaintiff and defendant entered into the contract the defendant knew that the electricity supply was needed to the eleven units for residential purposes on stand 2936 Golfview and further that plaintiff intended to rent out the said residential units.  At that time it was within the contemplation of the defendant that plaintiff would suffer a loss of income if defendant did not perform its obligations timeously.  Mr Lewis testified further that, at that time it was within the contemplation of the defendant that plaintiff could not rent the relevant individual residential units out to tenants without such units being connected to and receiving electricity from the defendant’s electricity supply grid.

[5]  According to the evidence of Mr Lewis the plaintiff has performed all its obligations in terms of the said agreement in accordance with the terms of such agreement.  On the other hand defendant only laid the cable, performed the required work on the mini-substation and installed the meter on the boundary of the plaintiff’s property contemplated by the relevant agreement on or about the 30^th January 2013.  As a result of this the defendant only connected the plaintiff’s multiple unit residential development to the electricity supply grid after or on the 30^th January 2013.  His contention is that in the prevailing circumstances the defendant did not lay the necessary cable, perform the required work on the mini-sub and install the relevant meter on the boundary of the plaintiff’s property within a reasonable time.  Consequently, and in the prevailing circumstances the defendant did not connect the plaintiff’s multi-unit residential property development to the electricity supply grid within a reasonable time.

[6]  He further testified about a letter that he wrote on the 8^th January 2013, a year since he had done the application, pleading with the defendant to have a look at why the connection has not been done yet.  He indicated that he also wrote an e-mail to one Anel Vorster that works for the defendant requesting an urgent connection again.  The reply thereto which indicated that the project was delayed by lack of material together with resources that was to be used during the connection was received by him on the 29^th January 2013.  According to him the defendant promised that connection was going to be completed that Friday according to plan.  The defendant only started the work and connected the electricity on the 30^th January 2013.

[7]  Mr Lewis further testified that he had decided to build town-houses and rented them out because the market was good.  His aim was to rent them out by the end of October although the contractor promised that if he is not yet finished by then, definitely by the end of November he will be done.  He indicated that indeed by the end of November all the construction work of the town-houses was finished although there were still people on the site.  By that time defendant had not even started what he referred to as the physical work that was to be done by them.

[8]  He further indicated that during the last three months of completion of the town-houses, they had already advertised for the rental of the same town-houses and the amounts thereof. By the end of October all the town-houses were spoken for and they still had a waiting list.  He indicated that if the town-houses could have been occupied by then, all of them will have been taken.  The certificate of compliance was obtained by him on the 5^th February 2013 after the defendant connected electricity on the 30^th January 2013.

[9]  Mr Lewis indicated that the amounts of the flats are not equal in size. Their rental prices ranges from R6200-00 to R7900. He indicated that his total claim is R231 000-00 being rental that he could have acquired from December 2012 to February 2013.  He lastly indicated that because of the fact that the defendant connected the required electricity at the end of January 2013 he could not have acquired the compliance certificate timeously and only received it on the 5/02/2013.  As a result he could not have rented out the flats in February still because the month had already started.

[10]  It emerged during cross examination that by the 30^th January 2013 the plaintiff had not yet obtained a certificate of occupation or a certificate of compliance.  Further that the certificate of compliance was only signed on 5 February 2013.  It was put to him that according to the terms and conditions of the contract between the parties the defendant could not connect before the certificate of compliance was received by defendant.  Mr Lewis did not agree with this proposition and gave his own understanding of how the work was to be done by the defendant.  His own understanding was to the effect that the connection consists of two stages:-

• Eskom had to lay the cable first on their side which they did not; (the construction work)

• Then two electricians, that is the one employed by him and the one by the defendant must meet to check the connections at the mini power station;

• During which time the defendant’s electricity must be connected temporarily so that his electrician can see if everything is working 100% properly;

• It is only after this has been done that his electrician will then issue a certificate of compliance and then Eskom do the permanent connection.

[11]  It was put to him that his understanding of how the connection is supposed to be done is not correct.  Further that he did not suffer any damages because at the time the defendant’s people connected the electricity, he had not had a certificate of occupation, he could not have thus be in the position to lease out the properties in question.  Secondly that, plaintiff was also not in possession of a certificate of compliance as required by paragraph 1.5 found on page 6 of the defendant’s discovery bundles which according to defendant’s Counsel forms the terms and conditions before supply can be connected.  Lastly that, the defendant performed its duties in a reasonable time, whilst on the other hand the plaintiff is the author of its misfortune because it did not perform according to the terms and conditions of the contract at the time the defendant connected the electricity.

[12]  The second witness called by the plaintiff was Ms Jacobs who works for Harcourts Mafikeng Real Estate Agency.  She testified that they specialises in selling and renting houses and has been doing this job for seven years.  She indicated that since they started with this business there has been a shortage of flats or houses for rental.  When they advertise, they get clients immediately.

[13]  She further testified that the plaintiff requested them to file a report in regard to the flats in question.  She inspected them and found that they are in good condition and can confirm that the rental amount charged by the plaintiff is the correct and reasonable one.  In coming into this conclusion she took into consideration the rental amounts normally charged in that area for similar flats and their conditions.  The area where the flats are also plays a role according to her.  There were other flats which were near these ones that she compared with.  Golfview, Riviera Park and Leopard Park are high in demand for rental places.  She ended up going through all the rental agreements which has been annexed to the papers in Court and confirmed that she used them in compiling her report in regard to this matter.

[14]  Plaintiff closed its case and the defendant applied for absolution from the instance in terms of Rule 39(b) of the Uniform Rules of Court (The Rules) which was dismissed by this Court.  The reasons thereof have been encapsulated in a separate judgment as they were requested by defendant.

[15]  Defendant then called Johannes Peter Poen who works for the defendant.  He indicated that he has worked for the defendant for the past 24 years.  He is a Supervisor in the acquisition department and they deal with customers applications. He indicated that the first time he heard about the plaintiff’s matter was in January 2013 when he received a letter from him enquiring when will they connect the electricity.  He referred to the customer application form, final quotation, acceptance from the customer and papers indicating the scope of work as the terms and conditions that they and plaintiff agreed on.  He indicated that they could not connect before the Certificate of compliance has been received.  According to him, in his 24 years in the defendant’s employ no customer may get electricity without satisfying the terms and conditions stipulated by Eskom.  According to him the plaintiff did not comply with these terms and conditions of their agreement from the time they accepted their quotation.

[16]  During cross-examination he admitted that their work entails the construction part and the connection part which can be termed the supply part of the work but insisted that the two go together.  He further indicated that the customer must indicate by producing a certificate of compliance to show that he is ready for construction and supply.  He vehemently denied that the defendant did not do the construction part within a reasonable time, but was not prepared to elaborate on why he was denying that although he agreed that defendant was aware that plaintiff had paid all what was required by February 2012 which is almost a year.

[17]  It was only in re-examination when prompted by his legal Counsel that he gave a reason that the delay was not unreasonable because the construction and the supply must also be accompanied by all the documents, and not only proof of payment is required.

[18]  The second witness called by the defendant was Mr Ronald Seleke.  He also testified that he has been working for the defendant as a Senior Supervisor for 21 years and is responsible for operation and maintenance of electrical network, doing connections and disconnections.  He indicated that he knows the property of the plaintiff as he went there for the first time in January 2013. Upon arrival there he found that there was an old trench hundred meters away from the mini substation which was behind Golf-view shops.  A cable was laid in there towards the new metering point of the plaintiff to connect electricity.  The Eskom people had laid that cable on their side which is between the mini-substation and the plaintiff’s metering point.

[19]  He was supposed to switch off the circuit breaker of the low voltage site to allow the contractor to connect to the circuit breaker and the cable that is going to the metering point of the plaintiff.  The plaintiff was supposed to have a certificate of compliance to indicate that it was ready to receive electricity supply.  The plaintiff also was supposed to have a cable connected up to the metering point, and should have been connected into the circuit breaker in the metering point.  At the time he was there, there were no signs of some form of constructions on the plaintiff’s site.  No cable was laid from the side of the houses that were built on the property of the plaintiff as they were still under constructions.  He did not do anything because the plaintiff was not ready to receive the supply.

[20]  In cross examination he was adamant that construction of the houses were not completed in January 2013.  He also admitted that he was not at plaintiff’s property in December 2012.  He further conceded that the construction part of the work that was to be done by the defendant was not yet done in January 2013.  Answering the question from the Court he indicated that he heard that the defendant’s people laid the cable on their side a day before he went there.  Further that it is possible that they can do the construction part and the switching on supply together on the same day but they do not prefer to do that because of the long queue of customers waiting, as to do both takes a long time.  The defendant closed its case.

[21]  From the summary of the whole evidence before this Court the following issues seems to the common cause:-

21.1  That the defendant was obliged to secure electricity supply for the said 11 town houses / flats;

21.2  That plaintiff applied in writing on 15 November 2011 to the defendant to supply a new service to Erf 2936;

21.3  That plaintiff applied for 100Kva phase bulk supply to Erf 2936, Golfview for purposes of distribution to residential flats

21.4  On 9 January 2012 the defendant furnished the plaintiff with a final written quotation for the installation on a 100Kva supply of electricity at Erf 2936;

21.5  On 27 January 2012 the plaintiff accepted the final quotation in writing;

21.6  The written application, final quotation and acceptance letter constitutes a written agreement between the plaintiff and defendant;

21.7  The express, alternatively implied, further alternative tacit terms of the agreement included inter alia:-

21.7.1 Defendant would install a 100Kva electricity supply to stand 2936;

21.7.2 The declared voltage for the supply would be 3 phase at 400/230 volts;

21.7.3 in order to accomplish this, the defendant would:-

21.7.3.1 Lay 95 metres of 150mm armoured service cables to the boundary of the plaintiff’s Erf;

21.7.3.2 Install a 225Kva MCCB at mini-substation G3;

21.7.3.3 Terminate with a 100Kva meter unit on the boundary of plaintiff’s Erf;

21.8 Plaintiff was to pay an upfront connection charge of R 117 725.08.  Plaintiff was to pay defendant an additional amount of R 15 285,00 being equivalent to approximately two months usage as security for payment of electricity consumed on the town house / flat development;

21.9 The defendant was to lay the aforesaid cable, complete the associated works on the mini-sub and install the 100Kva metering unit on the boundary of the plaintiff’s said stand within a reasonable time;

21.10 The plaintiff paid the defendant the total amount of R133 010,08 (R117 725,08 for the upfront connection added to it R15 285,00 deposit) on 31 January 2012;

21.11 Defendant only lay the cable, performed the required work on the mini-sub and installed the meter on the boundary of the plaintiff’s property contemplated by the agreement on 30 January 2013;

21.12 Defendant only connected the plaintiff’s multi-unit residential development to the electricity supply grid after 30 January 2013;

21.13 The description and floor area of the 11 units on the plaintiff’s multi-unit residential development is not in dispute.

[22]  It is therefore apparent that the issue before this Court revolves around the following questions:  Whether or not the plaintiff performed its obligations in terms of the agreement and furthermore, whether or not the defendant laid the necessary cable, performed the required work on the mini sub-station and installed the relevant meter on the boundary of the plaintiff’s property within a reasonable time.

[23]  The evidence of Mr Lewis concentrated much on the issues relating to the merits of this case as to whether the plaintiff performed in terms of the contract and whether or not the defendant did perform in a reasonable time.  He is therefore a single witness in this respect.  Mrs Jacobs’s evidence relates mainly to the computation of the quantum of damages.  Their credibility were not challenged at all, in addition the defendant did not lead any evidence to counter that of Mrs Jacobs.  Her evidence is accepted by this Court as reliable.  Evaluation of the issues before me will be primarily made with reference to the evidence of Mr Lewis and the two witnesses of the defendant.  I may indicate at the onset that the evidence of Mr Poen did not help this Court at all in as far as the issues before Court is concerned.  Poen’s evidence did not support any of the defences set out in the Defendant’s plea.  Poen’s denials were unsubstantiated.  Poen did not state specifically that the plaintiff failed to take specific steps.  He only stated that the plaintiff did not comply with the terms and conditions, he did not state which terms and conditions were not complied with. He could not explain the delay by the defendant to perform the electrical construction work (scope of work).  He merely denied that the delay was unreasonable.  No reasons for his “say-so” were given.

[24]  Similarly, the credibility of Mr Seleke who testified on behalf of the defendant was not placed in issue.

[25]  It is not in dispute that according to clause 3 of Annexure A, the plaintiff is required to have its installation ready for connection by Eskom at least 30 days before the connection date.  It is not in dispute that according to the same clause, the connection date was 90 days from the date of acceptance of the terms and payment of up front charges.  A correct calculation therefore depicts that the connection date was thereby fixed on or about 30 April 2012, being 90 days from date of payment.  Consequently, the plaintiff was supposed to be ready to receive electricity on 31 March 2012, being 30 days before the connection date (30 April 2012).  It therefore goes without saying that the plaintiff was supposed to be ready to receive electricity long before the date it claims it completed the property.

[26]  Mr Lewis claims that the property was completed at the end of November 2012, this being 7 months from the date when the defendant was obliged to connect the plaintiff with electricity. The plaintiff admitted during cross examination the terms and conditions of the contract that it had to erect and connect up its electrical installation with the point of supply on the connection date.  Further that he was unequivocally bound to all the defendant’s terms and conditions.

[27]  Mr Seleka gave evidence that is contrary to that of Mr Lewis that the plaintiff’s property was still under construction during January 2013, which is several months after the connection date envisaged in the contract.  However, he did not testify at all about the version the defendant’s Counsel put to Mr Lewis that the defendant’s people were chased away when they wanted to come and connect electricity.  This issue as to whether the plaintiff’s property was still under construction although has a bearing on the facts before this Court is more relevant in the issue of quantum.  In as far as the issue of whether the plaintiff was ready to receive the connection from the defendant, it is neither here nor there especially when regard is had to the terms and conditions of the contract between the parties.   

[28]  Mr Seleka said:  “there was not way I can switch on the customer supply because they were not ready so I had to wait till such time they can say they are ready”.  Mr Lewis admitted that an occupation certificate was an applicable law that had to be complied with before he could lease out the buildings.  He further admitted that he did not have an occupation certificate as evidence that the property could be leased out at the time the connection by the plaintiff was done in January 2013.  In its own version, the plaintiff completed the building in November 2012, which is several months after the envisaged connection date according to the contract signed.  It is not open for the plaintiff to blame the defendant for the fact that its building was only completed in November 2012.

[29]  The decision by Davidson J in Industrial and Mercantile Corporation v Anastassiou Brothers 1973 (2) SA 601 (W) confirmed the principle of law set out by Innes CJ in Burger v Central South African Railways 1903 TS 571.  Davidson J decided that the principle of law governing the liability of a party who signed a document which contains printed terms and conditions over his signature is:-

“….It is a sound principle of law that a man when he signs a contract is taken to be bound by the ordinary meaning and effect of the words which appear over his signature”

[30]  I fully agree with the submissions of the defendant’s Counsel that the contract signed by the parties had a suspensive condition.  Amongst others the following can be quoted:-

“Please note that the supply will not be connected before the”  Certificate of Compliance” has been received”

AND

“The customer shall at its own expense, supply, erect, connect up, operate and maintain, any equipment required to connect its electrical installation with the point of supply, which equipment shall be to the approval of Eskom”

[31]  The Supreme Court of Appeal in Mia v Verimark Holdings (Pty) Ltd [2010] 1 All SA 280 (SCA) found that:-

“The conclusion of a contract subject to a suspensive condition creates a very real and definite contractual relationship between the parties.  Pending fulfilment of the suspensive condition the exigible content of the content of the contract is suspended.  On fulfilment of the condition the contract becomes of full force and effect and enforceable by the parties in accordance with the terms.  No action lies to compel a party to fulfil a suspensive condition.  If it is not fulfilled the contract falls away and no claim for damages flows from its failure.  In the absence of a stipulation to the contrary in the contract itself, the only exception to that is where the one party has designedly prevented the fulfilment of the condition.

[32]  Christie in “The Law of Contract in South Africa” posits that at page 516:-

“A plaintiff who sues for payment must allege and prove that he has performed his obligations entitling him to payment, and no matter how positively the defendant alleges that the plaintiff has not performed but is in breach, the onus remains on the plaintiff to prove he has performed”.

[33]  Galgut J in Katzenellenbogen N.O. v Cawood 1965 (4) SA 316 (T)  was aligned to the views of Christie above and followed the ratio in MacFarlane v Crooke 1951 (3) SA 256 (C), quoting the case of Wegerle v Pretoria Machinery sales 1946 T.P.D. 319 at p323 where it said:-

“where a contractor sues for the contract price of work done, and a plea is raised that work was defective and not in terms of the contract, the onus of proving the absence of defects rests with the contractor.

[34]  It is therefore the duty of the plaintiff to satisfy this Court that it had complied with this suspense conditions in the contract.  Although Mr Lewis admitted that the terms and conditions above binds him, he nevertheless admitted that by the end of January and at the time of connection, he had no Certificate of compliance.  This much is seen from the e-mail dated 30 January 2013 which he admitted that was couched as follows:-

“Even if the power is connected by Friday I will not be able to get an occupation certificate from the Council because we have to give them a COC” 

[35]  In fact he admitted that he obtained the Certificate of Compliance on the 5^th February 2016, this is after the defendant had connected.  It therefore appears that the defendant connected before the plaintiff was ready to receive in terms of their contract.  As to why the defendant connected without having received this certificate we were not told.  But this does not assist the plaintiff at all, because the furnishing of the certificate of compliance to the defendant not only important to determine whether plaintiff was ready to receive at the time connection was made, but is also important in determining the next issue that I deal with below which relates to the question whether the defendant failed to connect within a reasonable time.

[36]  To this key issue of not having the compliance certificate before the date of connection Mr Lewis gives out his own interpretation of how the work (construction work by the defendant) and the connection part should be done.  According to him the defendant must connect the electricity first before he can get a certificate of compliance.  This understanding informs him that there is a temporary and a permanent connection. As illustrated by him, the temporary connection is to test that electricity components were connected properly from his side.  Thereafter his electrician issues out a Certificate of Compliance.  A permanent connection comes into play after he received the C.O.C. Unfortunately this explanation comes from Mr Lewis himself who is not an expert in electricity connections nor works for Eskom or any company that deals with electricity connection.  He did not even give us the source where he gets this understanding from.  The explanation by Mr Seleke who knows how the connection is done does not resonate at all with the plaintiff’s understanding.

[37]  Mr Seleke who works for Eskom and is a Senior Supervisor there in the division that deals with connections was adamant that although they do the construction part of laying the cable first before connecting the actual electricity supply, this work can be done on the same day.  They prefer not to do it that way because of the huge demand of connection as it takes time.  When outlining how the connection is done, it was quite clear that there is no room for a temporary and permanent connection.   He needed no electrician from the side of the plaintiff to be present.  According to him he was supposed to have found the relevant electricity cables from the plaintiff’s side already connected to the grid on the mini-substation and after being supplied with the Certificate of Compliance to just connect.  Mr Seleke did not only explain what they normally do when they connect, but was the officer allocated from Eskom to do the plaintiff’s connection, which he did.  He did not even require to test the connection of the plaintiff’s first as Mr Lewis suggested. It therefore goes without saying that the explanation by Mr Lewis of how connections are done was ill-conceived.  This also explains the reason why Eskom put as a condition that clients must have a certificate of compliance first before Eskom can connect.  All of the above indicate that the version of the plaintiff that Eskom had to lay the cable first and connect (switch) temporarily before he gets a compliance certificate is also ill-conceived.  Under the circumstances a conclusion that plaintiff was not ready to receive the connection at the end of January 2013 is justified.

[38]  The defendant couldn’t connect electricity on the connection date because the property on plaintiff’s version was only completed end of November 2012.  As indicated above, Clause 3 of their terms and conditions required plaintiff to have its installation ready for connection by Eskom at least 30 days before the connection date.  For the installation to be ready for connection, the plaintiff as indicated by the defendant’s witnesses should have amongst others conditions had a certificate of compliance ready when the connection was done.  The misconception of the plaintiff in regard to the obtaining of the certificate of compliance cannot be an excuse to blame the defendant to perform timeously.  In fact as indicated above, Eskom performed without it and thus the issue of unreasonable delay does not even come into the picture, even ex lege.

[39]   The issue of the plaintiff having paid the total amount required by the 31^st January 2012, which fact is heavily relied upon by the defendant  inclusive of the fact that by January 2013 the defendant had not laid the cable is not a bar to the plaintiff for not complying with the terms and conditions agreed upon.  Equally, the remarks by Margaret Ntuli in her affidavit resisting Summary Judgment which remarks are quoted in paragraph 30 of the judgment of this Court containing reasons that were handed down already for refusing absolution from the instance, do no longer assist the plaintiff anymore at this stage because this Court had the benefit of information from an expert of the defendant who works for the defendant and did the connection at the premises of the plaintiff.  It is trite law that the test to be applied for absolution at the end of the plaintiff case is not an onerous one.  At the end of both the plaintiff and the defendant’s case, evidence before the Court must be evaluated holistically to determine whether the plaintiff had proved on a balance of probabilities the onus rested upon it, which is a far heavier test than a prima facie case.

[40]   The plaintiff’s concise amended claim was that it “has performed all of its obligations in terms of the said agreement in accordance with the terms of such agreement”, but it then changed to “it had not performed its obligations because the defendant prevented it from doing so” during trial.  The defendant came to Court with evidence to show that the plaintiff had not performed its obligations because the plaintiff claimed that it had performed its obligations.  It is not open for the plaintiff to change its claim during the proceedings, especially when the evidence tends to shows that the plaintiff had not fulfilled its obligations in terms of the agreement.  The plaintiff is bound to the claim that it had fulfilled all its obligations.  It cannot change its claim to that it could not fulfil its obligations because of the defendant.

[41]   The judgment in Comwenzi Security Services (Pty) Ltd and Another v Cape Empowerment Trust Ltd [2014] ZASCA (28 March 2014), where the Court found that one couldn’t prevent a party from complying with its obligations does not apply to the plaintiff because that was not the case the plaintiff made out in its particulars of claim.  The plaintiff is bound, and limited to its particulars of claim.

[42]   Apart from the above, the defendant cannot comply with its obligation to provide electricity if the plaintiff is not in a position to receive electricity.  The plaintiff in my view, failed to adduce evidence to support its claim for contractual damages.  For the reasons set out above, the plaintiff failed to discharge its burden of proof and its claim falls to be dismissed.  Its claim for “reasonable time” of performance is both factually and legally incompetent.

[43]   The test for causation in an action for damages was outlined by the Supreme Court of Appeal in Vision Projects (Pty) Ltd v Cooper Conroy Bell & Richards Inc. 1998 (4) SA 1182 (SCA) faced with an appeal for damages allegedly caused by a breach of contract, decided:-

“…the appellant has failed to show that the result would have been any different had the properties remained in the name of Allied or been transferred to the appellant in the circumstances postulated above.  In other words, it has not been shown that the breach on the part of the respondent was a causa sine qua non of the appellant’s loss.  The cause of the loss was the arbitrators incorrect decision, not the respondents breach.  The question whether there was ‘legal causation’ as opposed to ‘factual causation’ (Cf International Shipping Co (Pty) Ltd v Bentley 1980 (1) SA 680 (A) accordingly does not arise”.

[44]   The remarks in this case are apposite to the facts of our matter.  It therefore means that I will be justified to conclude by saying that the plaintiff’s incorrect decision is the author of its own misfortune.  The need to deal with the quantum of damages falls away as a result of the conclusion that I have reached above.

[45] Consequently the following order is made:-

45.1  The plaintiff’s action is dismissed with costs.

 

________________

A M KGOELE

JUDGE OF THE HIGH COURT

 

ATTORNEYS:

FOR THE PLAINTIFF           :         Smit Stanton Inc

                                                          29 Warren Street

                                                          MAHIKENG

FOR THE DEFENDANT      :         Ngeno & Mteto Inc

                                                          C/O Van Rooyen Tlhapi Wessels Inc                                                     9 Proctor Avenue

                                                          MAHIKENG

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