Court name
High Court
Case number
unknown-2008/467
Case name
Kamanja v Smith t/a W.A.S Smith Drilling
Media neutral citation
[2009] NAHC 91

Kamanja v Smith t/a W.A.S Smith Drilling (unknown-2008/467) [2009] NAHC 91 (26 November 2009);

Headnote and holding:

The plaintiff in this case claimed restitution for a breach of contract. The court determined whether the defendant was in breach of contract for failing to install a working borehole in a geohydrological environment where the plaintiff's farm was located.

The defendant raised a counterclaim that the plaintiff had accepted that work was completed but failed to pay the balance of the agreed amount. The court applied the rule in Du Plessis v Ndjavera that the plaintiff is under no obligation to perform before defendant has completed his performance. 

The court held that the defendant was at fault for failing to assess the soil formation in the area and ended up using the incorrect drilling method. The court observed that the defendant admitted to using the riskier direct flush air percussion instead of the mud rotary method to save on expenses and thus failed to complete performance. 

Accordingly, the court held that the defendant was in breach of contract and the plaintiff was entitled to cancel the
agreement and claim restitution. The counterclaim was also dismissed with costs.

CASE NO.: (P) I 467/2008

IN THE HIGH COURT OF NAMIBIA

In the matter between:

VILHO ELIFAS SHEETHENI KAMANJA PLAINTIFF

and

WILLEM ANDRIES STEPHANUS SMITH

t/a W.A.S SMITH DRILLING DEFENDANT

CORAM: Marcus, AJ

HEARD ON: 24-26 /11/2009

DELIVERED ON: 26/11/2009 (Ex Tempore)


 

JUDGMENT


 


 

MARCUS, AJ


 

[1] Plaintiff, a communal farmer, in the Mangetti communal area, Oshikoto region had no water point on his farm. He was thus forced to take his cattle to a neighboring farm for water. The cattle had to be driven for a considerable distance to reach the water. Needless to say, that the quality of his livestock was affected by having to travel the long distance. He must have considered it to be his lucky day, when he met defendant sometime in June 2006 and learned that defendant conducted a drilling business and installed boreholes for the extraction of water. Plaintiff states that defendant’s narration of his drilling activity captured his imagination and he was keen to engage defendant to drill a borehole on his farm.


 

[2] During the course of their conversation, defendant gave plaintiff a handwritten quote for his services which indicated that he would charge N$ 700.00 for each meter drilled. The quote indicated two different drilling depths. One was a depth of 120meters at a cost of N$ 84 000.00 and the other a drilling depth of 150 meters at a cost of N$105 000.00. The installation costs for the tools and machines were put at N$ 45 000.00. Plaintiff although eager to have a borehole installed on his farm did not immediately accept the quote, as he did not have the necessary money at the time. Following the meeting defendant sent a more detailed quote to plaintiff on 9 August 2006. The drilling cost and installation cost previously quoted remained the same. The quote stated however, that a deposit of 50 % was to be paid into defendant’s bank account before resumption of any work. The entire fee quoted for the proposed drilling services to a depth of 150 meters, including VAT, was N$ 165 750.00.


 

[3] Plaintiff accepted the quote and deposited N$ 85 750.00 into defendant’s bank account on 18 August 2006. This appears to be a little bit more than 50 % of the amount quoted by defendant. Plaintiff stated that on the day the handwritten quote was given to him by defendant, it was agreed that 50% of the costs would be paid upfront and the balance upon completion of the work. The drilling work did not commence immediately upon payment of the deposit as plaintiff had expected. It was only in early November of the same year that defendant eventually came to plaintiff’s farm. On arrival at the farm defendant inspected the site and identified the place which he thought most suitable for the drilling and erection of the borehole. Plaintiff testified that defendant was convinced that there was water on his farm. During the identification of the drilling site defendant, referred inter alia to the big trees that were on the farm, which according to defendant indicated the presence of water. Defendant then promised to return two weeks later to commence the drilling process.


 

[4] Plaintiff testified that defendant’s son, with his drilling crew, eventually came to his farm. By 13 November 2006 the drilling process was under way. When plaintiff returned to the farm he observed that defendant’s son had a lot of difficulties with the drilling work and was getting instructions via the radio by defendant. Defendant’s son continued drilling up to a depth of about 80 meters and by then some water was struck. During the last week of November 2006 defendant returned to the farm and took some mud samples and again left the farm. With the help of chemicals a depth of 108 meters was eventually reached.


 

[5] By then the steel casing was installed in the borehole, the pumping equipment and engine were also installed and the drilling crew prepared to vacate the farm. Plaintiff was visibly disturbed when he saw the drilling crew packing up as no water was coming yet from the borehole. He confronted defendant’s son, who explained that they had to allow the concrete to set for a week and that they would return after a week. After about two weeks the drilling crew, headed by defendant’s son, returned in order to start the engine and activate the pump. Various attempts were made to pump water but to no avail and the crew left with the promise to return early the following year.


 

[6] During the second week of January 2007 plaintiff met defendant’s son at a neighboring farm and he asked him to return to his farm in order to complete the job. Suffice to state that defendant’s son did return to plaintiff’s farm in January but was unable to fix the problem and hence vacated the farm. Thereafter plaintiff inquired on a number of occasions with defendant when they would return to his farm but to no avail. As is to be expected, arguments ensued between the parties and plaintiff eventually stopped in June 2007 trying to get defendant to return to his farm. The door to litigation was thus flung open pitting the parties against each other.


 

[7] Plaintiff then engaged his lawyers, who on 18 February 2008, terminated the agreement with defendant and demanded the return of the deposit paid by plaintiff. Shortly thereafter (during March 2008) defendant also engaged a consultant, to whom I shall refer later, to compile a report on the work done by defendant. In April the same year summons were issued, in which plaintiff claimed restitution of the deposit paid (N$ 85 750.00) and the money expended on the consultant in the amount of N$ 10 453.50. The basis advanced for the claim was that, defendant failed to complete the work within a reasonable time and had rendered defective workmanship.


 

[8] The above sums up the evidence of plaintiff as testified to at the trial. Plaintiff’s evidence can in my view be described as fairly simple and straightforward. Unfortunately the same cannot be said of the story, or better yet the stories, of defendant. Defendant’s case shifted, as the trial went on, like the sediments which surround the borehole he drilled, and eventually collapsed into a single explanation which proved to be the death knell to his case.


 

[9] The impression I gained when I first read the pleadings of defendant, was that the agreement stipulated that plaintiff had to pay the balance of the amount quoted by defendant on the date defendant commenced with the drilling work. I must confess that this caused me to raise an eyebrow, as I found it incomprehensible why plaintiff would agree to a condition that would leave him vulnerable and is not the norm in contracts for the rendering of services ( Du Plessis v Ndjavera 2002 NR 40 (HC) at 44). The reader will remember that plaintiff stated that the balance was only payable once the work was complete.


 

[10] During cross-examination of plaintiff however it became clear that defendant’s position appeared to be that the quotation he sent to plaintiff on 13 December 2006 was for work already completed. The point that was being made by counsel for defendant was that plaintiff had accepted that the work had been completed, but nevertheless had failed to effect payment of the balance amount. Defendant’s counsel also seemed to suggest, contrary to what was stated in defendant’s counterclaim, that defendant was willing to drill up to 150 meters and that it was due to plaintiff’s omission to follow up, with the Defendant that this did not happen. When defendant took the stand however, again a different picture emerged. Defendant stated that while they were busy drilling they encountered mud in the borehole. Due to the mud it became apparent that with the drilling method that defendant employed (percussion method) he was unable to drill deeper than the 108 meters reached. To drill to a lower level, a different drilling method had to be employed (mud rotary method). He stated that he did not have the necessary equipment to employ the mud rotary method as it was too expensive. He thus decided to abandon the project, despite the fact that the borehole was not yielding water. He stated that he did not intend to claim any amount from plaintiff and that the amount of N$ 47 190.00 represented the value for the equipment left at plaintiff’s farm.


 

[11] The contention that plaintiff had accepted that the work done by defendant was complete holds no water. Plaintiff explained that when defendant’s son and his crew left the site at the beginning of December 2006, they informed him that all that remained to be done was for the concrete to dry before the borehole would be operational. While waiting for the drilling crew to return, plaintiff received a statement on 6 December 2006 in the amount of N$ 83 000.00. Plaintiff wrote to defendant on 13 December 2006 querying the amount, stating that it had been incorrectly calculated based on a depth of 150 meters as opposed to 108 meters which was the actual depth drilled. In response to the letter defendant rectified the statement and sent a new statement based on the 108 meters drilled, which gave an amount of N$ 47 190.00. During cross-examination it was suggested that plaintiff in his letter dated 13 December 2006 never took issue with the fact that the statement dated 6 December 2006 referred to the borehole as being complete and that he was invoiced for a completed borehole. He thus accepted, so it was submitted, that the borehole was complete. In my view this submission is without merit.


 

[12] Plaintiff explained that he had accepted defendant’s son explanation that the work was complete when they left the side at the beginning of December 2006. It only became apparent later, when the drilling crew returned (after the letter dated 6 December 2006), that the borehole was not pumping and the work was not completed. The allegation that the borehole was complete by 6 December 2006 is in any event defeated by defendant’s admission, during cross-examination that the borehole was not functioning at all, when he decided to abandon the site during mid December 2006.


 

[13] In the final analysis it all boiled down, in my view, to defendant having employed an incorrect drilling method, as so ably and competently explained by Mr. Bockmühl, the expert who testified on behalf of plaintiff and who had compiled a report evaluating the drilling technique used by defendant. In his report and in evidence Mr. Bockmühl stated that the drilling method used, was not appropriate and is too aggressive for the geohydrological environment where plaintiff’s farm is situated.


 

[14] Defendant was well aware that the direct flush air percussion method is riskier than the mud rotary method and that it’s success level depended on the soil formation. He never ascertained before starting with the drilling work at plaintiff’s farm what kind of soil formation he would encounter. This data is readily available and could have been obtained by defendant (as testified by Mr. Bockmühl) had defendant cared to do so. Defendant decided to take a chance, hoping that he would be lucky and strike water as he had done on previous occasions where he employed the percussion drilling method. When he did encounter a problem (existence of mud) he was ill prepared to deal with it. The problem, as conceded by him, could only be overcome by using the mud rotary method. He testified that he did not use this method, as it was too expensive and involved too much paperwork. I am of the view that, Defendant cannot pass the obligation, to ascertain the soil formation beforehand, in order to decide what drilling method to use, onto the client (plaintiff) as he tried to do. It was his professional obligation to do so.


 

[15] The service rendered by defendant was gravely defective, as the borehole could not be used for the intended purpose. Plaintiff in fact had to engage a different contractor to construct a new borehole, as the one built by defendant could not be repaired. It was not disputed that it was a material term of the agreement that the services would be rendered efficiently and in a workmanlike manner and that it would be completed within a reasonable time. I find that it was also a material term of the agreement that water could be pumped from the borehole. Plaintiff did not just want a hole on his farm, as suggested by defendant, but one that yields water. I am satisfied that defendant breached all these terms and plaintiff was thus entitled to cancel the agreement and claim restitution. Plaintiff was under no obligation to perform, before defendant had completed his performance i.e. construct a working borehole. ( Du Plessis v Ndjavera supra at 44; Drayer T/A Jordra Engineering v Heyman 1998 NR 127 (HC) at 136) Also: Wille’s Principles of South African Law, 9th ed at 946


 

[16] In light of my finding that a defective drilling method was used, it is not necessary to decide whether other omissions and commissions by defendant, such as insufficient casing on site or wrong gravel that was emplaced into the borehole also contributed to the service being defective. Before I conclude I wish however to remark that defendant’s decision to task his son, who at the time was only 19 and still a trainee, with the construction of a borehole (in itself a highly specialized activity), with a minimum of supervision constitutes, in my view, an act of professional recklessness of the highest order. It also exhibits a wanton disregard and lack of respect for plaintiff as a person and as a paying customer, and the Court wishes to express its mark of disapproval of the conduct of defendant.


 

[17] In the result I make the following order:

Ad Claim 1

  1. The cancellation of the agreement by plaintiff is confirmed;

  2. Defendant is ordered pay to plaintiff the amount of N$85 750.00;

  3. Payment of interest in the amount of 20% per annum from date of judgment to date of payment;

  4. Cost of suit.

Ad Claim 2

  1. Defendant is ordered to pay to plaintiff the amount of N$ 10 453-50;

  2. Payment of interest in the amount of 20% per annum from date of judgment to date of payment;

  3. Cost of suit.


 

[17] a) The counterclaim by defendant is dismissed with costs.


 

______________________________

MARCUS, AJ


 

ON BEHALF OF THE PLAINTIFF: MR. S. Namandje

INSTRUCTED BY: Sisa Namandje & Co. Inc.


 


 

ON BEHALF OF THE DEFENDANT: MR. Z. S. Grobler

INSTRUCTED BY: Bazuin-Halberstadt Legal Practitioners