Mahlalerwa-Kgabo-Ergo v Cooperativa Muratori Cementisti Ravenna (Pty) Ltd t/a C.M.C di Ravenna (South Africa) (10058/2017) [2018] ZAGPPHC 102 (14 March 2018)

Mahlalerwa-Kgabo-Ergo v Cooperativa Muratori Cementisti Ravenna (Pty) Ltd t/a C.M.C di Ravenna (South Africa) (10058/2017) [2018] ZAGPPHC 102 (14 March 2018)

The court found that the written agreement between the parties was clear and unequivocal regarding the contract price and the items included therein. The contract expressly stated that all duties, fees, taxes, and further costs payable by the subcontractor, including overheads and profit, were deemed to be included in the prices and rates of the Schedule of Quantities. The applicant's attempt to introduce implied or tacit terms regarding payment for Health and Safety Procedures and Site Establishment costs was inconsistent with the express terms of the agreement. The claims for restitution and unjustified enrichment were not properly pleaded and, if allowed, would render the particulars...

Citation
[2018] ZAGPPHC 102
Parties
Applicant: Mahlalerwa-Kgabo-Ergo JV; Respondent: Cooperativa Muratori Cementisti Ravenna (Pty) Ltd t/a C.M.C di Ravenna (South Africa)
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
14 March 2018
Case Number
10058/2017
Procedural Posture
Amendment Application / Application for Amendment of Particulars of Claim
Outcome
Application for amendment refused; costs awarded against the applicant.
Judges
Millar
Legal Topics
Amendment of Pleadings, Implied Terms, Contract Price, Unjustified Enrichment, Restitution
Civil Procedure Commercial and Corporate Amendment of Pleadings Implied Terms Contract Price Unjustified Enrichment Restitution

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Parties

Mahlalerwa-Kgabo-Ergo JV

Applicant

Cooperativa Muratori Cementisti Ravenna (Pty) Ltd t/a C.M.C di Ravenna (South Africa)

Respondent

Procedural Posture

Amendment Application / Application for Amendment of Particulars of Claim

Legal Issues

  1. 1 Whether the applicant may amend its particulars of claim to introduce implied or tacit terms regarding contract price.
  2. 2 Whether the proposed amendment introducing claims for restitution and unjustified enrichment is legally permissible.
  3. 3 Whether the contract expressly excludes the possibility of implied or tacit terms regarding payment for certain costs.

Ratio Decidendi

The court found that the written agreement between the parties was clear and unequivocal regarding the contract price and the items included therein. The contract expressly stated that all duties, fees, taxes, and further costs payable by the subcontractor, including overheads and profit, were deemed to be included in the prices and rates of the Schedule of Quantities. The applicant's attempt to introduce implied or tacit terms regarding payment for Health and Safety Procedures and Site Establishment costs was inconsistent with the express terms of the agreement. The claims for restitution and unjustified enrichment were not properly pleaded and, if allowed, would render the particulars...

Court Disposition

Application for amendment refused; costs awarded against the applicant.

Orders

  • The application for amendment is refused.
  • The applicant is to pay the costs of the application.