Sdudla Engineering (Pty) Ltd v W.S.L Construction (Pty) Ltd (1019/15) [2016] SZHC 27 (15 December 2016);

Case name: 
Sdudla Engineering (Pty) Ltd v W.S.L Construction (Pty) Ltd

 

     

IN THE HIGH COURT OF SWAZILAND

 

HELD AT MBABANE                                                          Case No: 1019/15

 

In the matter between:  

 

SDUDLA ENGINEEERING (PTY) LTD                                      PLAINTIFF

 

And

 

W.S.L. CONSTRUCTION (PTY) LTD                                DEFENDANT

 

 

Neutral Citation   :         Sdudla Engineering (Pty) Ltd  v  W.S.L. Construction

(Pty) Ltd (1019/15) [2016] SZHC 27 (15 DECEMBER 2016)

 

Coram                  :         MABUZA –J

 

Heard                   :         12/01/2016

 

Delivered                 :           15 DECEMBER 2016

SUMMARY

 

Practice  - Provisional sentence – Requirements thereof – Provisional sentence granted to the Plaintiff together with interest and costs.

 

 

JUDGMENT

 

MABUZA –J

[1]     The Plaintiff herein issued a provisional sentence summons (the summons) based on a cheque drawn its favour on the 20th May 2015 by the Defendant in an amount of E24,974.49  (Twenty four thousand, nine hundred and seventy four Emalangeni forty nine cents).

 

[2]     The cheque was not paid by the bank and is marked “account stopped”.

 

[3]     The summons calls upon the Defendant to pay interest thereon at the rate of 9% per annum from the date of presentation to date of payment; costs of suit at attorney and own client; and further and alternative relief.

 

[4]     The Plaintiff further calls upon the Defendant that failing payment, it is called upon to appear before Court to admit or deny their liability for such claim.

 

[5]     That if they deny liability they shall file an affidavit with the Registrar which affidavit shall set forth the grounds of its defence to the said claim and in particular whether the Defendant admits or denies the signature on the said cheque.

 

[6]     The defendant upon receipt of the provisional sentence summons filed its affidavit resisting provisional sentence and stating therein that the Defendant has a bona fide defence to the claim.

 

[7]     The Defendant’s affidavit is deposed to by Mr. William S. Luyt, the Managing Director of the Defendant the defence raised therein is as follows:

 

“5.  The Plaintiff was engaged to weld certain flat sheets at the National archives by the Defendant.  The Plaintiff was engaged as a sub-contractor to the Defendant.  The Plaintiff was then requested to quote for the work to be done.  It was then given a cheque by the Defendant for the works subject to being carried out in accordance with its quotation and being performed in a skillful manner.   It was made clear to the Plaintiff that payment will only be approved once the work has been undertaken in a skillful manner.

 

6.  The Defendant pleads that the Plaintiff never completed the works in a satisfactory manner.  The Defendant further pleads that the Plaintiff performed the said work in a negligent and unskilled manner, so that the flat sheets were defective and they were wrongly assembled.  The Plaintiff was notified by the Defendant of those defects and the payment was then stopped.  The Defendant has not undertaken the necessary repairs up to date to be entitled to the sum claimed.

 

7.  In the premises, the Defendant is not liable to the Plaintiff in any amount.”

 

[8]     The Defendant concludes by requesting this Court for an order that the

application for provisional sentence be refused with costs and that the Defendant be granted leave to defend  the matter. 

 

[9]     The Plaintiff filed a replying affidavit deposed to by its Managing Director, Mandlenkosi Dlamini.  The deponent states that during August 2013, the Defendant engaged the Plaintiff as a sub-contractor for fabrication and installation of flashing and for replacement of roof sheets.  The Plaintiff duly presented a quotation to the Defendant for the work to be done which quotation reflected the prices and charges as well as the terms of payment.

 

[10]   The Defendant paid an advance deposit of 50% and when the work was completed settled the balance in instalments during November 2014, December 2014, February 2015 and May 2015.  That the amount of E24,974.49 was the balance outstanding and the cheque therefor was drawn during May 2015 but  on presentation was not paid and was returned marked “account stopped”.  The list and sequence of payments is set out in Annexure “SE 3”.

 

[11]   It is the Plaintiff’s submission that it discharged its obligations fully and in a satisfactory manner and in terms of the approved drawings.  That the works were completed without any complaints from the Defendant or the Ministry of Public Works and Transport responsible for the renovations at Lobamba National Archives.

 

[12]   That the Defendant never notified the Plaintiff of any defects nor were any queries raised about the competence of the works.  That the Defendant has not at anytime demanded that the Plaintiff conduct any repairs.  That the issue of repairs is new and an afterthought.

 

[13]   As on the 5th November 2013, the amount owing to the Plaintiff was E244,974.49 and the Defendant made the following payments:

                  

“29 November 2013                -           E150,000.00

                        10 December 2014                  -             E50,000.00

                        20 February 2015                    -             E20,000.00”

 

[14]   A balance of E24,974.49 remained outstanding after the above payments were made.  On the 20 May 2015 the Defendant made a payment of E24,974.49.  The payment by cheque.  The cheque of E24,974.49 was not paid by the bank and was returned with the inscription “account stopped” on the face of the cheque.

 

[15]   When the matter came before me on the 23rd October 2015, I issued an order that Messrs Standard Bank be requested to furnish a report clarifying the meaning of the words “account stopped”.

 

[16]   By letter dated 29th October 2015 and addressed “to whom it may concern” the bank responded as follows:

 

“The general meaning of the words “Account Stopped” is that the account has been stopped or blocked from receiving any debts, for example, because the account has been closed, the customer is deceased, of directives from orders of Court and or various authorities (e.g. Swaziland Revenue Authority) or the account has been overdrawn (kindly note that these examples are not exhaustive)”

 

[17]   The Defendant in its plea at paragraph  says that “the Plaintiff was notified by the Defendant of those defects and the payment was then stopped.” The scenario that is applicable herein is that the payment was stopped (my emphasis).

 

[18]   The Defendant says that the Plaintiff was engaged as a sub-contractor to the Defendant.  The works that were carried out by the Plaintiff were for the Ministry of Public Works and Transport who were responsible for the renovations at Lobamba National Archives.

 

[19]   The Ministry of Works and Transport has not filed an affidavit confirming that of the Defendant that the Plaintiff never completed the Works in a satisfactory manner or that the Plaintiff performed the work in a negligent and unskilled manner so that the flat sheets were defective and they were wrongly assembled.  This would have made the Defendant’s defence complete.

 

[20]   The Defendant has not attached to its affidavits the notification sent to the Plaintiff to make right its alleged poor workmanship.  The attachment of the notification would have lent further credence to its defence together with an affidavit from the aforesaid Ministry.

 

[21]   Mr. Jele for the Defendant has argued that the said cheque is not a liquid document.  I disagree.  The cheque has all the hallmarks of a liquid document which are:

 

                   (a)     a written instrument;

                   (b)     signed by the Defendant or his agent;

                   (c)      evidencing an acknowledge of indebtedness;

                   (d)     which is unconditional;

                   (e)      of a fixed amount of money.

 

(23)   The above components appear ex-facie the cheque.  Firstly, the cheque is a written instrument.  It is addressed to the bank to pay “Sdudla Engineering” Two Four Nine Seven Four Emalangeni 49/100 cents only” And in figures “E24,974.49”. 

 

Secondly; the cheque is signed by Mr. Lyte.  His signature appears below the name of the Defendant’s Company.  Mr. Lyte has admitted that he is the Managing Director of the Defendant.  He has also admitted that he is responsible for scrutinizing and paying all claims from creditors.  Most important he has not denied his signature on the cheque.  He has not denied being the duly authorized agent of the Defendant.

 

Thirdly; the cheque instructs the bank to pay to the order of the Defendant the said amount of money.  That instruction clearly evidences an acknowledgment of indebtedness.

 

Fourthly; the directive thereon is unconditional; and

 

Fifthly; it has a fixed amount of money.

 

[24]   In view of the aforegoing I find for the Plaintiff and reject the Defendant’s defence.

 

[25]   The order of this Court is as follows:

 

  1.      Provisional sentence is hereby entered for the Plaintiff;

 

  1.      Interest thereon calculated at the rate of 9% per annum from the 

 

 

date of service of summons to the date of payment is hereby granted;

 

  1.      Costs of suit on the ordinary scale is granted in favour of the
  2.  

 

 

 

___________________________

  MABUZA J

JUDGE OF THE HIGH COURT

 

 

For the Applicant          :         Mr. Magagula

For the Respondent       :         Mr. N.D. Jele