Court name
High Court Main Division
Title

Multi Engineering Contractors v De Vries Cooling Services CC () [2020] NAHCMD 376 (25 August 2020);

Media neutral citation
[2020] NAHCMD 376
Case summary:

Civil Practice – Plaintiff claiming from second defendant money due to it for work done – The claim arising from a partly oral and partly written agreement entered into between the plaintiff and the second defendant – The second defendant claiming that plaintiff repudiated agreement and thus refuses to pay the amount claimed – Meanwhile, second defendant also filed a counterclaim claiming damages from the plaintiff for alleged expenses to be incurred on the automatic sprinkler system – Court finds the second defendant a poor witness – Grants judgment with costs of suit in favour of the plaintiff and dismisses counter-claim with costs.

Headnote and holding:

The plaintiff has claimed from second defendant payment of money for the installation of an automatic sprinkler system installed in the Oshana shopping mall. The second defendant and the plaintiff entered into a partly oral and a partly written agreement to install the sprinkler system. After completion of the installation and on submission of the invoice for payment of the amount due, the second defendant refused to pay and filed a counter-claim against the plaintiff.

The court held: that the plaintiff was a poor witness, not credible and not trustworthy witness.

Held further that the plaintiff and his witnesses corroborated each other with regard to the completion of the installation of the sprinkler system.

Held furthermore, that Mr Zaaruka being a lay witness was disqualified from expressing an opinion on the technical functionality of the system installed.

 

 

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

 

JUDGMENT

 

Case no:  I 857/2014

 

In the matter between:

 

MULTI ENGINEERING CONTRACTORS (PTY) LTD                                    PLAINTIFF

 

and

 

DE VRIES COOLING SERVICES CC                                            FIRST DEFENDANT

MR B ZAARUKA t/a BENZ BUILDING SUPPLIES               SECOND DEFENDANT

 

Neutral citation:            Multi Engineering Contractors (Pty) Ltd v De Vries Cooling Services CC (I 857/2014) [2020] NAHCMD 376 (25 August 2020)

 

Coram:          UNENGU, AJ

 

Heard:           13 – 17 & 21 November 2017; 05 – 14 February 2018; 08 March 2018; 05 April 2018; 08 May 2018; 16 – 19 July 2018; 03, 08 – 09 & 16 17 August 2018; 09 – 12 & 15 April 2019; 12 – 14 & 27 June 2019; 23 – 25 September 2019; 02 – 03 December 2019; 17 January 2020; 16 – 17 & 27 March 2020; 24 April 2020; 07 & 28 May 2020

 

Delivered:     25 August 2020

 


ORDER


(i)      Judgment is granted in favour of the plaintiff in the amount of N$ 475 142-40;

(ii)     Interest on such an amount at the rate of 20% per annum a tempore morae;

(iii)    Cost of suit which cost to include cost of one instructing and one instructed counsel;

(iv)    The plaintiff to correct the outstanding items in the system at no cost to the second defendant;

(v)     The counter-claim is dismissed with cost which cost to include cost of one instructing and one instructed counsel.

 


JUDGMENT


 

UNENGU, AJ:

 

[1]        The plaintiff in the matter, Multi Engineering Contractors (Pty) is claiming from the second defendant payment in the amount of N$ 475 142. 40 for the manufacturing, supply and installation of the automatic sprinkler system in the Oshana Pick ‘n Pay Shopping Mall. It is an old case which commenced in 2012 already but was delayed by unnecessary postponements and interlocutory applications on the part of the second defendant. It also happened that instructing and instructed counsel acting on behalf of the second defendant were replaced again and time again while the trial was continuing and after various witnesses had testified already. These and other interruptions caused considerable delays in the finalization of the matter. Be it as it may, ultimately, we managed to bring the matter to a stage where we finished with the evidence and submissions of both parties.

[2]        On or about 22 June 2012, Mr De Vries of De Vries Cooling Services called Mr Reussink, the manager of the plaintiff by telephone enquiring from him whether the plaintiff was an ASIB registered sprinkler installation company which Mr Reussink affirmed. It transpired during the discussions that Mr De Vries in his capacity as project manager for the shopping mall in Ondangwa, was acting on behalf of Mr Zaaruka the second defendant in the matter. The discussions were the precursor to MEC1, a quotation sent to the first defendant on 25 June 2012 which is quoted hereunder:

 

‘25 June 2012

De Vries Cooling Services CC

Att: Mr R De Vries 0811247973

Fax 215554

Dear Sir

Sprinkler Protection Pick ‘n Pay Shop. Oshana Regional Mall

We thank you for your enquiry and have a pleasure in submitting our quote for the automatic sprinkler installation for the above Pick ‘n Pay shop.

As our company cannot possible complete the work in the time you require, our Cape Town associates Whip Fire shall pre fabricate the pipe work, which will be transported to Windhoek, where after you will organize transport to the side as discussed.

The installation team will be sent from Cape Town, with Mr Gomez as foreman. Accommodation in Ongwediva for the duration of the installation shall be organized by yourself. You have informed us that there is continuous water supply, thus the necessity of a tank and pump installation falls away. We will, however, need a small plant room 1200x 2400 with double steel door for the Installation Control Valve. As matter of urgency, the AC ducting layout drawings, lighting layout drawings are required by Whip Fire to enable co-ordination of services. If any mezzanine floors will be installed, we would need this information. Our price for the supply and installation of the above automatic sprinkler installation will be N$ 1 235 520. 00 excluding Vat. Upon completion, the system will be fully tested and we will issue you with a completion certificate.

Trusting that the above meets with your approval.

Yours sincerely

(Signature)

A B Reussink

Cc Ivan Van Graan’

 

[3]        On 28 June 2012, the second defendant accepted the offer from the plaintiff as indicated in the above quoted letter and sent an e-mail communication to Mr Reussink of which the contents thereof are as follows:

 

‘From: Benz Construction benzconst@iway.na

Sent 28 June 2012 11:49 AM

To: abrmulti@iway.na
cc: ‘devries’

Subject: Sprinkers System for Pick’ n Pay shop in Oshana Mall

Attachment: 20120628113509_9 pdf

Dear Mr Reussink

As discussed with Romanus De Vries hereby order as per your quotation for the complete design and installation of an automatic sprinkler system as per ASIB specification for a total amount of N 1 235 520.00 (One million two hundred and thirty five thousand and twenty Namibian dollars only). As time is not our side please see how soon you can start with the whole process. We are having 15 August 2012 deadline for the complete installation and commissioning. I hope this is in order and if there is anything extra I need to do from our side to speed up the process please feel free to contact me personally.

Kind Regards

Mr. B. Zaaruka M.D

Benz Building Supplies’

 

[4]        What is apparent from the e- mail communication from Mr Zaaruka though, is that he had included words or terms which were not discussed with Mr De Vries, namely, “design and as per ASIB specification“. These phrases are not included in the quotation MEC 1 as discussed between Mr De Vries and Mr Reussink. What were discussed are those in MEC 1.

 

[5]        The express, alternatively implied and the further alternative tacit terms of the agreement were that the plaintiff would make use of the services of Whip Fire Projects (Pty) Ltd to comply with the manufacturing, supplying and the installation of the automatic sprinkler system; the costs for the manufacturing, supply and installation of the components for such automatic safety sprinkler system payable to the plaintiff upon completion of the manufacturing, supplying and the installation of such automatic safety sprinkler system would be an amount of N$1 235 520 (One Million Two Hundred and Thirty Five Thousands Five Hundred and Twenty Namibia Dollars) excluding VAT.

 

[6]        The manufacturing, supplying and installation of the said automatic sprinkler system would be completed by the plaintiff by 15 August 2012; that payment in respect of the project would be made upon progress and on progress certificates drawn up by Whip Fire Projects (Pty) Ltd and/or by submitting invoices to the plaintiff for further submission to the first or to the second defendant and that the balance of the contract price then outstanding would be paid by the first or the second defendant upon completion of the project and testing thereof and when the completion certificate was issued.

 

[7]        As pointed out hereinbefore, the quotation MEC 1 was issued to Mr De Vries after extensive discussions between Mr Reussink, Mr Van Graan of Whip Fire and Mr De Vries on behalf of the second defendant. In the discussions Mr De Vries undertook to provide work permits for the workers of Whip Fire Projects from Cape Town to Ondangwa in Namibia as well as to transport tools and materials from Windhoek to the site.

 

[8]        On 25 June 2012 Mr De Vries by phone confirmed that the second defendant would make sure that water supply would be adequate thereby saving on the sectional tank and pressure pump installation. Mr Van Graan and his team arrived in Namibia on 3 July 2012 for a visit to the site of the project and returned to Cape Town the following day.

[9]        On the 30 July 2012, the first Tax invoice 3472 for an amount of N$ 1 054979. 64 was issued to the plaintiff but only N$ 895 134. 24 thereof was certified for payment of the 70 percent completion of the contract. The invoice was paid in two different instalments of N$ 496 634. 24 and N$ 398 500 by Stanton Properties CC on 11 August 2012. Thereafter, the second defendant refused to pay the plaintiff the money due to it after completion of the project. The second defendant has alleged that the plaintiff has repudiated or breached the agreement therefore, the amount due would not be paid to it.

[10]      The plaintiff, Multi Engineering Contractors (Pty) Ltd, (The Plaintiff), as a result of the refusal by the defendant to pay to it the money owed, issued combined summons against the first and second defendant, De Vries Cooling Services CC and B Zaaruka t/a Benz Building Supplies, respectively and has claimed from them jointly and severally, one pays the other to be absolved an amount of N$ 1 235 520 (One Million Two Hundred and Thirty Five Thousand and Five Hundred and Twenty Namibia Dollars),excluding VAT; in respect of the manufacture, supply and installation of an automatic sprinkler system at the Pick ‘n Pay Shop, Unit 10, Oshana Regional Mall, Ongwediva, Namibia.

[11]      The claim arose from the partly written and partly oral agreement entered into between the second defendant and the plaintiff during the period of 25 and 28 June 2012 concerning the manufacture, installation and the supply of the automatic sprinkler system as indicated above. But in its amended particulars of claim, the plaintiff prayed for an order for payment of an amount of N$ 475 142.40 (Four Hundred Seventy Five Thousands One Hundred forty two Namibia Dollars and forty cents).

[12]      However, the plaintiff, in the meantime, has withdrawn the claim against the first defendant. The second defendant, in his amended plea, admitted the agreement and the contents of the quotation attached to the particulars of claim marked as MEC 1. That agreement is now common cause between the parties. The second defendant in his amended plea, has alleged that the email dated 28 June 2012 of which a copy thereof was attached to the particulars of claim of the plaintiff as MEC 2, also constituted a partial written agreement and that it confirmed the oral agreement between the plaintiff and the second defendant. Mr Zaaruka was absent from oral negotiations between Messrs, Reussing, Van Graan and De Vries therefore, would not know what was agreed.

[13]      It is further admitted by the second defendant that the purchase order (MEC 2) was issued to the plaintiff for the manufacturing, supply and the installation of the automatic sprinkler system. No mention was made about design, tank and pumps in the order. Correctly so, in my view, because the design, water tank and pumps are not included in the quotation (MEC 1) and such were not quoted for by the plaintiff. The reason why the design, the water tank and the pumps were not included in the quotation is because in the negotiations between Mr De Vries and Mr Reussink the installation of the tank and pumps were said by Mr De Vries not required because Mr Zaaruka (second defendant) is well known to the town councillors, therefore, he would organize for the required water supply.

[14]      In his amended particulars of claim, the plaintiff has claimed payment of the amount of N$ 475 142. 40 (Four Hundred Seventy Five Thousands One Hundred and Forty Two Namibia Dollars Forty cents); interest at a rate of 20 percent per annum a tempore morae; costs of the suit; further and/or alternative relief.

[15]      Further, the plaintiff, pleaded that the agreement was negotiated and entered into between it and the first defendant. While the second defendant only became known to the plaintiff on 28 June 2012 when the second defendant sent the confirmation letter (MEC 2) and the official order (MEC 3) for acceptance of the agreement. According to the plaintiff, it performed all such obligations which it was capable of performing, given the second defendant’s breach and failure to secure and maintain sufficient water supply to the system rendering it impossible to attend to any such further non-material items which may remain outstanding and which serve to excuse any non-performance which may be found to exist.

[16]      As pointed out above, the second defendant in his amended plea admitted the contents of paras 1, 2, 3, 4, 5.1, 5.2, 5.3 and para 7 of the particulars of claim. The second defendant also admitted that the agreement was concluded between the plaintiff and the first defendant as his agent. The latter admission precludes the second defendant from pleading anything else other than the terms and conditions negotiated between the plaintiff and Mr De Vries. The second defendant was absent from the negotiations therefore can only accept what is contained in quotation (MEC 1). Nowhere in the pleadings is it suggested that the second defendant and the plaintiff negotiated additional terms and conditions of the agreement entered into.

[17]      Having said that, the plea by the second defendant that the automatic sprinkler system had to be as per specifications of Automatic Sprinkler Inspection Bureau (ASIB) and to be commissioned by the plaintiff and certified by ASIB, is misplaced because it does not form part of the terms and conditions negotiated and agreed to between the plaintiff and the first defendant.

[18]      The second defendant, in paras 4, 5 and 6 of his counterclaim to the claim of the plaintiff, confirmed in detail the terms and conditions of the agreement entered into between the plaintiff and the first defendant. However, in the particulars of his counterclaim, he has claimed payment of the amount of N$ 2 761 262.24 for damages arising from an alleged repudiation or breach of the agreement; interest on the said amount at the rate of 20% per annum a tempore morae, until the date of payment; costs of suit and further and/or alternative relief.

[19]      According to the second defendant, the total amount for the damages so claimed in the counterclaim, is for costs to complete and support the sprinkler system minus the amount claimed by the plaintiff and the VAT on the said amount.

[20]      The plaintiff in its plea to the counterclaim, amongst others, denies breaching the agreement as alleged by the second defendant and pleads that it is the second defendant who breached the agreement and remains in breach thereof by not complying with his obligation of securing and maintaining sufficient water supply to the system. Accordingly, he cannot blame the plaintiff for his own failure.

 

[21]      The matter went through all the stages of judicial case management. On 22 March 2017, the parties filed a draft pre-trial order signed by their legal practitioners. In paras 1 to 10 thereof, the parties set out issues they regard to be not in dispute or appear common cause to them; while those in dispute were listed in paras 11 to para 24 of the draft order. The same was repeated in respect of the counterclaim with reference to the particulars of the counterclaim:

[22]      If regard is had to the issues not in dispute between the parties as set out in paras 1 to 10 of the draft order, one would realize that most if not all the allegations in the particulars of claim to the plaintiff’s claim are not in dispute at all. Particularly when regard is had to the agreement entered into between the plaintiff and the second defendant and the aspect of the second defendant the party who is still to perform in terms of the contract as it appears in paras 2 and 8 of the draft order. That being the case, the main issue still to be resolved by the court in respect of the claim in convention is the quantum of the claim. The quantum also has not been disputed by the second defendant.

[23]      Nevertheless, the matter was set down for trial before me with Mr Obbes assisted by Mr Vlieghe acting on behalf of the plaintiff and Mr Narib, later Mr Kauta, exchangeably, assisted by Ms Kuzeeko, on behalf of the second defendant.

[24]      Mr Albertus Bernardes Reussink, the managing director of the plaintiff, testified amongst others that he was phoned by Mr De Vries on or about 22 June 2012 and enquired from him whether his company (the plaintiff) was an ASIB registered sprinkler installation company which he affirmed. Thereafter, a discussion about the installation of an automatic sprinkler system in the Oshana Pick ‘n Pay Mall ensued between him and Mr De Vries.

[25]      According to Mr Reussink, Mr De Vries informed him that he was acting on behalf of Mr Zaaruka, the second defendant. Further, that Mr De Vries told him that as part of the fire protection, a sprinkler design was done by a Johannesburg company. And because the design included the entire shopping mall, including a standby tank and pressure pump installation, the second defendant found the design too expensive. As a result he said, Mr De Vries asked him whether the tank and the pressure pump installation could be omitted to save the second defendant 1. 6 million Namibia dollars.

 

[26]      Mr Reussink testified further that he then told Mr De Vries the requirements of the maximum flow for simultaneous operation of hydrants, hose reels and sprinklers as per s 2 of the ASIB eleventh edition. Mr De Vries answered he said that it would not be a problem for the second defendant to secure the continuous supply of water at the required pressure because of his influence at the council. Mr De Vries assured him that sufficient water supply according to the specifications was the obligation of the second defendant.

[27]      Furthermore, Mr Reussink testified that in view of the discussions between him and Mr De Vries, he prepared a quotation (MEC 1) which he sent to the latter for his attention which Mr Zaaruka accepted. The quotation (MEC 1) set out all the work to be done, the remuneration and indicated that the system will be fully tested and the plaintiff will issue the second defendant with the completion certificate. Mr Reussink was thereafter aggressively cross- examined by counsel for the second defendant but was not moved from his version.

[28]      I must also point out here that it is common cause between the parties that an agreement was concluded between the plaintiff and Mr De Vries on behalf of the second defendant. That has been admitted by the second defendant in his plea and was not disputed in the draft pre-trial order signed by the legal practitioner for the second defendant.

[29]      The second witness to testify for the plaintiff was Mr Ivan Peter Van Graan who testified that he is a qualified engineer and experienced to express opinions contained in his statement to which he had attached his CV. According to him, Mr De Vries contacted him in June 2012 regarding a sprinkler system and asked him to provide him with a quotation. He replied and requested to work with Mr Reussink of the plaintiff company because they were based in Namibia.

[30]      Based on the discussions with Mr De Vries, the witness prepared working drawings for the sprinkler installation. He said that on the site while in the presence of the second defendant and another, he observed that there was no sign of a suitable water supply of 100 millimeters main with 400 Kpa static pressure. According to him this was a responsibility of the second defendant to provide sufficient water pressure and the flow to meet the design requirements of the sprinkler installation. This he knew, he said, because the second defendant confirmed it with him.

 

[31]      It is further Mr Van Graan‘s testimony that Mr Zaaruka would arrange with the local authority to install a new 150 mm water supply from a nearby water source to within 1.5 m of the proposed location of the ICV, but completed the installation when Mr Zaaruka still has not yet provided the required water supply. Mr Van Graan corroborated the evidence of Mr Reussink in many material respects in his capacity as an engineer by profession. As was done with Mr Reussink, Mr Van Graan also went also through the same mode of cross-examination by Mr Narib but never moved away from his version.

[32]      The following witness called by the plaintiff was Mr Alan Douglas Watt, also an engineer by profession at Whip Fire. He testified that his company got the approval from the plaintiff to design and manufacture the sprinkler system to be installed in the shopping mall. He said that they pre-manufactured the system in their workshop in Cape Town from where the materials were transported by road to Oshakati and arrived on site on the 18 July 2012 while he himself arrived there on the 23 July 2012 to see to it that the project was running according to plan.

[33]      Mr Watt testified that he was on site for approximately four days and that many meetings were held between him, Mr Zaaruka and Mr De Vries on site to outline the progress and the project plan. He flew back to Cape Town on 26 July 2012 after the project plan was finalized, but before flying back, the witness discussed with Mr Zaaruka the need for the proper water supply, volume and water pressure to the site. Mr Watt said that Mr Zaaruka assured him that he had connections with the town council and that it will be taken care off. He emphasized that Mr Zaaruka was very much sure that it was his obligation to provide sufficient water volume and pressure for the installation.

[34]      It is further Mr Watt’s testimony that he returned to the site on 29 August 2012 to complete the final fix of the system but could not do it because the ceiling contractor had not installed the grid work. He said that the installation was done by 6 August 2012 and the pressure test was conducted on the 26 September 2012. The testing was done in the presence of Mr De Vries who signed the test certificate. However, at that time, there was still no water connection. Again Mr Zaaruka was made aware of the need to have the water connected but it was not done. Mr Watt denied having a role to play in the design of the system or the agreement itself.

 

[35]      Mr Watt further testified that even though there was no water connection installed yet, the system was filled from a hosepipe connected from a tap, and increased the pressure on the system by using the jockey pump installed in the control valve chamber to test the pressure

[36]      The plaintiff also called Mr Walter Kunzle to testified as an expert witness on the installation of the sprinkler system. Mr Kunzle accompanied by Mr Reussink, flew to Ondangwa from where they went to the site on the 20 July 2016 for onsite inspection. According to him, he inspected the installation with the support of ASIB approved drawings and found that the system consisted of an Installation Control Valve Room with 324 ceiling sprinklers and 335 void sprinklers.

[37]      Mr Kunzle said, he found only 12 chrome spare sprinklers in the spares box instead of 24 as per the ASIB standard with 12 void sprinklers and 12 white coated ceiling sprinklers. According to him the installation was neat and tidy and in accordance with ASIB Standard 10th edition approved drawings. He noticed further that the water pressure to perform an acceptable flow test was not available and the system showed 120 kpa at flow rate of approximately 650 litters per minute whereas the required water according to the ASIB design standard must be 1350 litters per minute at 4 bar running.

[38]      In his statement read into record to constitute his evidence in chief, Mr Kunzle expressed an opinion that the order placed by Mr Zaaruka to the plaintiff was in accordance with the quotation issued by the plaintiff for the installation of the Sprinklers System only excluding the water supply. As a result, he agreed that the installation was therefore satisfactorily completed by 15 August 2012. However, he proposed a few minor changes of sprinklers to the computer room to avoid severe damages caused to the equipment and cover the area above the computer room by the void sprinkler system in case of major fire.

[39]      Lastly, towards the end of his testimony, Mr Kunzle was of the opinion that in view that the site installation conformed with the approved ASIB drawings, except for minor items, it was his professional opinion that the sprinkler system as installed, met the ASIB standard and that the minor outstanding items pointed out, to be rectified by the plaintiff at no costs to the second defendant as they were not detrimental to the system functionality once the adequate water supply was in place.

 

[40]      Mr Kunzle‘s evidence was not challenged or refuted by another expert witness from the side of the second defendant. Both Mr De Vries and Mr Everson called by the second defendant as witnesses were not called as expert witnesses following the requirements of the rules of the Court. Therefore, even though, in their testimonies they have indicated that they were engineers, their evidence will be treated as evidence of lay witnesses and thus opinions expressed in their testimony will be disregarded on the basis of inadmissible opinion evidence rule.

[41]      Furthermore, Mr Kunzle corroborated the evidence of Mr Reussink, Mr Van Graan and Mr Watt with regard to the issue as to whether the installation of the sprinkler system was completed or not. Mr Kunzle confirmed that the system as installed met ASIB requirements except for minor outstanding items he suggested to be rectified by the plaintiff at no costs to the second defendant.

[42]      Mr Zaaruka testified on his own behalf and called two more witnesses to testify for him. They were Mr Romanus De Vries and Michael Everson. Mr. Zaaruka’s witness statement was received and marked exhibit “R“. However, I must point out here that the statement is full of inadmissible hearsay evidence and opinions or inferences drawn from documents authored by others. In view of the fact that Mr Zaaruka came into picture after Mr De Vries had finalized the negotiations with Mr Reussink with regard to the oral agreement which was mirrored in MEC 1, which he had accepted and issued a letter of acceptance (MEC 2) to the plaintiff, his evidence will be restricted to the letter of acceptance alone.

[43]      With respect to the agreement of the installation of the sprinkler system, he must have been told by Mr De Vries who negotiated the installation of the sprinkler system with both Mr Reussink and Mr Van Graan. Mr Zaaruka was at all times not present during the negotiations and as a lay witness, he is not competent to testify about the installation of the sprinkler system; the testing of water and air pressure and all other functionalities of the sprinkler system. He could only say something he heard from either Mr De Vries or Mr Everson.

[44]      As pointed out already, Mr Kunzle who is the expert witness testifying for the plaintiff, unequivocally testified that the installation was complete and in conformity with ASIB standard which standard Mr Zaaruka wanted. Also it is Mr Kunzle‘s evidence that it is a responsibility of Mr Zaaruka to secure sufficient and continuous water supply to the system. According to him, the quotation (MEC 1) containing terms and conditions of the agreement accepted by Mr Zaaruka, excluded the water tank and pump. The letter dated 28 June 2012 (MEC 2) issued to the plaintiff by the second defendant is proof of acceptance of the oral and written agreement.

[45]      Mr Zaaruka in his witness statement and oral evidence claimed to know and to possess technical knowledge of the system even though he lacks the professional know how in the field of the installation of sprinkler systems. Because of that belief, as said, Mr Zaaruka thought he could express an opinion on the installation of the sprinkler system as well as on the testing of air and water pressure. During cross-examination, Mr Zaaruka took time to answer questions put to him by the counsel of the plaintiff. He repeatedly consulted his notes he had in front of him prepared beforehand, and was unable to answer questions independently without the assistance of his notes. The court not once but on many occasions, intervened to get Mr Zaaruka answer questions put to him by counsel.

[46]      It was also during the testimony of Mr Zaaruka that the court has to consider many objections to some parts of his written statement for being either inadmissible hearsay or opinion evidence. I ruled to some paragraphs in the statement objected to but to some I indicated that I will do so in my judgment at the end of the trial. This applied also to objections raised against the statement of Mr Everson.

[47]      Mr Zaaruka through Mr De Vries earlier approached Mr Everson to provide him with a quotation for the installation of the automatic sprinkler system in the same Oshana Mall. However, the quotation, was rejected by Mr Zaaruka as too expensive for the project. But lol and behold, Mr Zaaruka after rejecting Mr Everson‘s offer as too expensive for the project, approached him for a quotation to be used in his counterclaim. No reason was advanced for the move.

[48]      The only reason I could think of why he wanted Mr Everson to provide him with a quotation this time, is because he wanted a higher amount than the amount quoted for by plaintiff for the same job. He wanted to claim much money from the plaintiff for the job, he refused to pay Mr Everson when he quoted for the job. Does that mean that the price which was not fair and reasonable for the job when he was quoted for, has suddenly become fair and reasonable when quoted in his fair against the plaintiff?

 

[49]      Nevertheless, the technical functionalities of the automatic sprinkler system installed in the Mall, Mr Zaaruka as a lay witness, is disqualified from expressing an opinion on. Therefore, the objections raised by counsel against the evidence in his statement, including annexures thereto, have merits and upheld on the basis of being either hearsay evidence or expressions of inadmissible opinion evidence.

[50]      Mr Zaaruka did not take the court into confidence which is why on many occasions he resorted to drawing impermissible inferences from the evidence of the plaintiff usurping the function of the court as a result. And because of his conduct, he damaged his own credibility. This was Mr Zaaruka. He thought, he was both a witness and a judge in his own case.

[51]      He is alleging in his counter-claim, that the plaintiff repudiated the agreement which is not correct. If the plaintiff did, then I missed out on that, which I believe not. I could not establish from the evidence of the plaintiff the conduct which constituted such a repudiation.

[52]      The evidence before me is that the plaintiff was waiting for Mr Zaaruka to provide sufficient running and continuous water supply to the system for purpose of final testing and to issue him a certificate which he failed to do to date or at the date of the trial when the summons was issued against him.

[53]      Mr De Vries testified that initially, his company tendered for the project of the installation of the air conditioning of the entire Oshana Mall after he was approached by Mr Zaaruka. However, during the meetings held with Pick ‘n Pay store planners, the planners insisted that an automatic sprinkler system should be installed in the Mall as it formed part of the Pick ‘n Pay specifications. As a result of this development, Mr De Vries arranged a meeting with Mr Everson in Windhoek whom he requested to provide him with a quotation for the installation of the automatic sprinkler system. Mr Everson sent him a quotation for the job but was rejected by Mr Zaaruka as too expensive.

[54]      After the rejection of the quotation of Mr Everson, Mr De Vries invited some ASIB accredited automatic sprinkler system installers of whom Mr Ivan Van Graan of Whip Fire Company responded and referred him to the plaintiff. Mr De Vries then on the 22 June 2012 met with Mr Reussink to discuss the project. On the 25 June 2012 Mr Reussink sent him a quotation which he on his part emailed to the second defendant. He confirmed during the discussions with Mr Reussink, that there was a continuous water supply at the Mall.

[55]      It is further his testimony that on 28 June 2012 he received an email from Mr Zaaruka where he had appointed the plaintiff and informed that the project be completed by 15 August 2012. It is how Mr Zaaruka and Mr Reussink were connected to each other and requested Mr Reussink to contact him directly in case he required his assistance. Thereafter, the materials for the installation of the sprinkler system were collected from Cape Town to the site by road and the installation started.

[56]      It must be mention that in the course of his reading into record of his written statement, Mr Obbes objected to some parts of the statement. In particular the contents contained in paras 18, 24, 25 and 28 and all annexures attached thereto. In para 24 starting from where the witness said that he disputed the accuracy of the pressure. Also in para 25 the second line from top where it starts with.... the test was conducted until and including the sentence stating that the sprinkler failed the pressure test due to leakages above the island freezers. The same goes to para 28 of his statement where he expressed an opinion that the plaintiff further failed to perform all his obligations in terms of the agreement, therefore, payment to it by the second defendant was not due.

[57]      Counsel, as a result of the objections raised against the admissibility of the contents of the paras and annexures as mentioned above, requested the court to declare the contents invalid and inadmissible.

[58]      The objections did not go down well with Mr Kauta. He argued that objections should rather be made at the stage when statements are served on the other party in terms of rule 92. He said that if a statement does contain inadmissible hearsay or opinion evidence, then that statement does not comply with rule 92 therefore, should be barred from being used in a trial. I am not sure about the argument by counsel. There is nothing to that effect in rule 92.

[59]      However, a statement, even though served on the other party, in my opinion, is not yet evidence as such. It becomes evidence-in-chief of the witness concerned only after such witness has taken an oath or affirmed to speak the truth nothing but the truth and has been admonished by the court in terms of sub-rule (4) of rule 93 . Before that, the statement does not constitute evidence before court, but evidence the party intends to lead during the trial. The court, as a trier of facts placed before it, will then decide which evidence to admit, which not and why not.

[60]      Rule 93 provides in sub-rules (1) and (2) that if the party has served a witness statement and he or she wishes to rely at the trial on the evidence of that witness, he or she must call the witness to give oral evidence and where such a witness has been called to give oral evidence under this rule, his or her witness statement will stand as his or her oral evidence-in-chief unless the court orders otherwise. In my opinion, the other party to the dispute may object against the admissibility or otherwise of parts of the evidence contained in the statement and the court may be required to make a ruling in one or the other way.

[61]      In this regard, Mr Obbes objected to the contents of the paragraphs pointed out above on the ground of either hearsay or opinion evidence because Mr De Vries although an engineer by profession, was not called to testified as an expert witness following the provisions of rule 29 of the Court Rules.

[62]      Rule 29 among others, provides that a person may not call as a witness any person to give evidence as an expert on any matter (as is the case in the instant matter) in respect of which the evidence of an expert witness may be received unless that person has been granted leave by the court to do so or all the parties to the suit have consented to the calling of the witness or that person has complied with rule 29.

[63]      In this instance, no leave was granted by the court to call Mr De Vries and Mr Everson as experts to give evidence of expert witnesses nor did the plaintiff in the matter give its consent to the calling of Mr De Vries and Mr Everson as expert witnesses by the second defendant. To rub salt in the wounds of the second defendant’s case, the provisions of rule 29 were also not followed either.

[64]      The second defendant could only be allowed to call Mr De Vries or Mr Everson or both as expert witnesses in these proceedings if the second defendant had complied with the provisions of rules 24, 25 and 29 of the Court Rules. Unfortunately the second defendant failed to follow the rules as was required to do. Having saying so, I am satisfied that Mr Obbes, was justified in objecting to parts of the evidence in the witness statements of both Mr De Vries and Mr Everson.

 

[65]      In any event, Mr De Vries was handpicked by the second defendant to do the work but was unable to do the work because he was not an installer for automatic sprinkler system. He is an installer of air conditioning by profession. In respect of Mr Everson, he did not qualify due to the non-compliance with rule 29 read with the rules. In fact, Mr Everson was called by the second defendant as a witness because he provided him with a quotation for purpose of the counter-claim. Whether Mr Everson would be allowed to do the job for the second defendant, is doubtful. The quotation, according to the expert Mr Kunzle is too high because the outstanding work to the automatic sprinkler system are minimal and, could be done by the plaintiff at no costs to the second defendant.

[66]      Again as pointed out before, there are paragraphs in the witness statement of Mr Everson together with annexures thereto objected to by Mr Obbes. Amongst those paragraphs objected to are paras 9, 11, 13, 15 and 17 on the basis of being either hearsay or opinion evidence. Mr Everson testified as a lay witness, therefore, the objections raised by the plaintiff to paragraphs pointed out above, are not without merit. The objections are therefore sustained.

[67]      The second defendant approached Mr Everson for only one purpose in mind. That is to provide him with a quotation for the project, to frustrate the plaintiff’s claim. Mr Zaaruka knew very well that Mr Everson would provide him with a very high quotation which he ordinarily would not entertain. But because the quotation was for purposes of his counter-claim, he would not mind to make use of the quotation against the plaintiff. What the second defendant forgot is that Mr Kunzle already told the court what was outstanding from the system and indicated that those outstanding items could be rectified by plaintiff with no extra expenses for him.

[68]      In any event, Mr Everson quoted for things different from what the plaintiff and the second defendant agreed upon between them. The counter-claim is based on terms and items outside the quotation by plaintiff addressed to and accepted by the second defendant. I am afraid, the second defendant cannot deny the fact that the plaintiff has installed the automatic sprinkler system in the shopping mall even though a few items are still outstanding which could be replaced with ease by the plaintiff. The main issue about the testing of the system and the signing thereof depended, according to evidence, on the second defendant providing sufficient and continuous water supply to the system.

[69]      I reiterate that the second defendant was very poor, not credible and not trustworthy. The impression created is that he has all the means at his disposal, therefore, he could delay the finalization of the matter. It is not that he has a case on merits to defend, but just reluctant to comply with his obligation in terms of the agreement namely, to provide sufficient and continuous water supply to the system. The counter-claim is, in my view, unnecessary. The items the plaintiff allegedly had not installed to form part of the installation system, had not been quoted for and accepted by the second defendant.

[70]      Furthermore, I agree with counsel for the plaintiff that the second defendant hatched the excuse not to pay the plaintiff after the summons was served on him. The same applies to the counter-claim. Mr Obbes is correct that the issue of the plaintiff repudiating a contract is an afterthought which sprouted from the time the summons was served. It is true, Mr Zaaruka does not want to pay the plaintiff because he wants to save money while benefiting from the system installed in his shop.

[71]      Once again I agree with Mr Obbes that the reliance on any breach of any obligation to design, has no merits for the reason that it has not been pleaded in the pleadings.

[72]      It is a requirement and is provided by rule 45 of the Rules of Court in sub-rule (5) that every pleading must contain a clear and concise statement of the material facts on which the pleader relies for his or her claim, defence or answer to any pleading, with sufficient particularity to enable the opposite party to reply and in particular set out the nature of his claim, including the cause of action, or the nature of his defence and such particulars of any claim, defence or other matter pleaded by the party as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet.

[73]      It is clear from the rule that if a litigant wants to rely on any defence or answer to any pleading, his or her pleading must contain a clear and concise statement of the material facts, with sufficient particularity to enable the opposite party to reply and also to enable the opposite party to identify the case the pleadings require him to meet. A failure to comply with these requirements by a litigant will cause prejudice to the opposite party. In this instance, the plaintiff was prejudiced because the design of the system was not pleaded by the second defendant.

 

[74]      Frank AJ, also pointed out in Makono v Nguvauva[1]  that the purpose of the pleadings is to elucidate and define the issues between the parties and not to obfuscate them so as to leave either the parties or the court to guess what the true issues are. It follows therefore, that the second defendant is not allowed to rely on facts or terms of a contract he had not pleaded in the pleadings. The court will not consider the parole evidence as requested by Mr Narib because it is unnecessary to do so. The terms and conditions of the agreement between the parties are clear from the quotation MEC 1. Annexure MEC 1 does not state that after the completion of the automatic sprinkler system, the system will be inspected by an inspector from ASIB. It is Mr Reussink who is an ASIB accredit engineer who would issue the certificate. I also take note of the authorities cited by counsel of the plaintiff concerning the interpretation of documents.

[75]      In conclusion Mr Obbes implored the court to grant judgment in favour of the plaintiff in the amount claimed or at a reduced price as the court deems fit and dismisses the counter-claim with costs which costs to include costs of one instructed and one instructing counsel.

[76]      On his part Mr Narib submitted that the court accepts annexures MEC 2 and MEC 3 to the amended particulars of the plaintiff’s claim as part of the written contract between the plaintiff and the second defendant. The court does not agree with the submission simply because, as correctly so admitted by the second defendant in the plea, oral negotiations between Mr De Vries, Mr Reussink, Mr Ivan Van Graan and the quotation (MEC 1) form the contract between the second defendant and the plaintiff. It is the contract he had accepted by letter MEC 2 followed by an official order MEC 3.

[77]      I have indicated above that from the evidence before me, I could not find anything or conduct on the part of the plaintiff which constituted a repudiation of the agreement to justify a counter-claim from Mr Zaaruka. To submit an invoice for payment of the work done and completed cannot under any circumstances be construed as a breach of a contract and a cause for a counter-claim.

[78]      I am happy that the plaintiff has proved his claim against the second defendant on a balance of probabilities. I find the testimony of the plaintiff to be plausible, credible and trustworthy compared to the version of the second defendant. The second defendant is a poor and not a trustworthy person. His demeanour in the witness box betrayed him dearly. He appeared to be thick in everything he said in his testimony. His conduct of I know everything, listen to me, is unacceptable.

 

[79]      In the result, and for reasons herein, I make the following order:

 

(i)      Judgment is granted in favour of the plaintiff in the amount of N$ 475 142-40;

(ii)     Interest on such an amount at the rate of 20% per annum a tempore morae;

(iii)    Cost of suit which cost to include cost of one instructing and one instructed counsel;

(iv)    The plaintiff to correct the outstanding items in the system at no cost to the second defendant;

(v)     The counter-claim is dismissed with cost which cost to include cost of one instructing and one instructed counsel.

 

 

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E P Unengu

Acting Judge

 

 

APPEARANCES

 

PLAINTIFF :                        D Obbes

Instructed by Koep & Partners,

Windhoek

 

DEFENDANTS :                  G Narib

Instructed by Weder, Kauta & Hoveka Inc.

Windhoek

 

 


[1] (2003 NR 138 (H) at 130 H-I).