Saragossa Proprietary Holdings (Pty) Ltd v Riekert NO and Others (Roelofse AJ) [2020] ZAMPMBHC 2; 2685/2018 (18 March 2020)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

MPUMALANGA DIVISION, MBOMBELA

(MAIN SEAT)

CASE NO: 2685/2018

In the matter between:

SARAGOSSA PROPRIETARY HOLDINGS (PTY) LTD Plaintiff

and

HOTZE IZEBRAND RIEKERT N.O.

First Defendant

ALETTA MAGRIETA RIEKERT N.O.

Second Defendant

JOHANNES JURIE PISO Third

Defendant

PISO EARTHMOVING (PTY) LTD

Fourth Defendant

JUDGMENT

Roelofse AJ:

Introduction

[1] There is a road on a game farm. The farm is situated in the Elands Valley in Mpumalanga. The road runs along the side of a mountain parallel to the ridge of the mountain. On a Google image of the road[1] it can be seen that one side of the road is clearly defined with a solid line while the other side of the road i.e. the side where the mountain slopes to is not well defined. The side where the mountain slopes down and areas where material that was excavated from the road was dumped, the road appears as a jagged edge. Soon after the road starts on the top of the mountain, it follows a zig-zag pattern to which the parties referred to as “the serpentine”. From there the road follows a relatively straight course until, at approximately half of the length of the road it makes a 180O turn. From the turn the road winds back in the direction where it originally started – obviously at a lower elevation. The

steepest part of the mountain is from where the road starts to where the roads makes the 180O turn.

[2] There is a big controversy over the road. It is this controversy that brought the parties to this court. The main personalities in the controversy are: Mr Jens Demler, a director and the controlling mind of the plaintiff (“Saragossa”); Mr Cobus Riekert, the controlling mind of the Broedershoek Trust (“Broedershoek”), the trustees of which are the first and second defendants; Mr Jurie Piso, the third defendant, director and the controlling mind of the fourth defendant (“Piso Grondverskuiwing”) and Mr Marius Human, a fencing contractor who, at the time the road was planned and excavated, was employed as contractor by Saragossa. The other personalities in the controversy are: Mr Olindo Singano, the operator of the excavator that excavated the road and Mr Frank Kruger, who was in the employment of Saragossa as an ecologist and IT specialist during the time the road was planned and excavated.

[3] Mr Demler says that Saragossa entered into an agreement with Piso Grondverskuiwing to construct the entire road, including excavation, compaction and the finishing. In addition, Mr Demler says that Sarragossa has suffered damages because Piso Grondverskuiwing breached the agreement because the road was improperly constructed and constructed without statutory authorization.

[4] Mr Piso says that there was no agreement that he or Piso Grondverskuiwing would construct the road and that he had noting to do with the construction of the road save for discussing and advising Mr Demler over the road and thereafter referring Sarragossa to Mr Riekert because Piso Grondverskuiwing’s excavator was not available.

[5] Mr Riekert says that Broedershoek, who is in the business of letting earthmoving equipment, contracted with Saragossa to provide

an excavator to excavate the road after Sarragossa was referred to him for purposes of excavating the road. In addition, Mr Riekert says that, despite Broedershoek finishing the excavation of the road, Sarragossa has failed to pay for the excavator.

[6] Mr Demler says that Sarragossa is not obliged to pay Broedershoek because Sarragossa had an agreement with Piso Grondverskuiwing and not an agreement with Broedershoek.

[7] The parties requested me to separate the conclusion of any contract from the issue of breach of such a contract and the damages resulting from such breach. The issue to be decided was defined by Saragossa as follows: Whether a contract exists between Saragossa and Piso Grondveskuiwing or Broedershoek. Once this question is answered, the court must find what the terms of the agreement was. Mr Piso and Piso Grondverskuiwing agreed this this was the question to be determined. Broedershoek added a qualification. I understood the qualification to be that, in the event the court finds that there was an agreement between Saragossa and Piso Grondverskuiwing, it would not mean that there was no agreement with Broedershoek with regard to the excavator. I am of the view that the qualification by Broedershoek will be fully addressed in the answer to the main question to be decided.

Litigation

[8] Saragossa instituted proceedings against the trustees of Broedershoek, Mr Piso and Piso Grondverskuiwing for damages and, effectively, for an order that the defendants must pay any statutory penalty that may be imposed as a result of the unauthorised road. In respect of damages, Sarragossa pleads that it is obliged to fix, rebuild and rehabilitate the road so that the road is fit for the purpose it was intended for and for the environment to be restored. According to Sarragossa, the damages includes the cost of repairing

the road and the costs associated with an application for environmental authorization. In addition, Sarragossa pleads that it and the defendants are jointly and severally liable for any administrative fine that may be imposed.

[9] Mr Piso and Piso Grondverskuiwing admitted that Mr Demler approached Mr Piso to enquire about the hiring of Piso Grondverskuiwing’s excavator. However they pleaded that Piso Grondverskuiwing’s equipment was not hired to Sarragossa as Piso Grondverskuiwing did not have an excavator that was available. Mr Piso and Piso Grondverskuiwing plead that they only referred Broedershoek to Sarragossa and there their involvement with the road stopped. In the alternative, Mr Piso and Piso Grondverskuiwing pleaded that Piso Grondverskuiwing only hires out equipment and in the event that it is found that Sarragossa hired the excavator from Piso Grondverskuiwing, Mr Piso and Piso Grondverskuiwing did not contractually undertake to construct the road.

[10] Broedershoek pleaded that its contract with Saragossa was only for the hiring of an excavator with an operator. On its part, Broedershoek instituted a counterclaim for payment for the work the excavator had done.

[11] In its plea to the counterclaim, Saragossa denied that it entered into an agreement with Broedershoek and pleaded that the agreement was with Mr Piso and Piso Grondverskuiwing. I proceed to deal with the evidence.

The evidence

[12] Mr Riekert testified that Broedershoek is in the business of the letting of earthmoving equipment. Broedershoek is not in the business of building roads. Once a client takes delivery of Broedershoek’s earthmoving equipment, the client did with the equipment what it wanted to do subject only that the equipment is not damaged. Broedershoek’s equipment is also accompanied by an operator employed by Broedershoek.

[13] On or about end of September 2017, Mr Piso informed Mr Riekert that Saragossa needed an excavator to excavate a road. Mr Piso informed Mr Riekert that Piso Grondverskuiwing’s excavator was engaged in another project. Mr Piso referred Saragossa to Mr Riekert.

Mr Riekert testified that it is common practice amongst earthmoving businesses in the area to refer clients to each other. Mr Riekert

testified that Mr Piso is his friend and a colleague and there is also a family tie between them.

[14] Mr Riekert testified that Mr Human called him and enquired whether he has an excavator that is available because Saragossa wanted to build a road. Mr Riekert testified that during that conversation an agreement was reached with Mr Human regarding the tariffs for the machine, that Saragossa would pay for diesel and that the transport for the excavator would be for Saragossa’s account. The tariff agreed upon for the excavator would be R370.00 per hour and the hours would only run when the machine worked. Mr Riekert arranged for the transport of Broedershoek’s excavator and its operator to Saragossa.

[15] Mr Riekert testified that the excavator was delivered to Saragossa on or about 26 September 2017. Mr Human informed Mr Riekert that he would give instructions to the operator. The excavator and operator proceeded with the excavation of the road along the route

that was marked out by Mr Human with wooden pegs.

[16] Mr Riekert testified that on or about end of September 2017, Mr Human called Mr Riekert and told him that Mr Demler wanted to see

him because there was a problem with the road. Mr Riekert requested Mr Piso to accompany him to the meeting with Mr Demler. Mr Riekert testified that he did so because he wanted the advantage of Mr Piso’s experience and because he knew that Saragossa was actually Mr Piso’s client. Mr Riekert wanted to keep Saragossa happy.

[17] At a meeting at the excavation, Mr Demler explained to Mr Human and Mr Piso what his problem was with road. Mr Riekert testified that he agreed that Broedershoek would fix the road and not charge for the excavator subject thereto that Saragossa provides the

diesel. Mr Riekert testified that he did so because, according to him, it was not only Broedershoek’s fault and that he wanted to keep Saragossa happy in order to preserve the relationship that Mr Demler had with Mr Piso.

[18] Mr Riekert testified that the nature of the problem was that the typography of the area where the road was excavated was difficult. The road was excavated next to the ridge of the mountain and therefore, on a slope. According to Mr Riekert, it would have been better to excavate the road on the ridge of the mountain. This Sarragossa did not want because there was a game fence on the ridge

which Saragossa did not want to remove. Mr Riekert testified that Mr Human pegged out the route below the ridge alongside the slope of the mountain. According Mr Riekert, after the problem with the road was addressed, the excavation work continued until the completion of the route. This took a further month after the road was fixed. Mr Riekert testified that the problem with the road only arose again after Broedershoek submitted its invoice for the excavator to Saragossa.

[19] Mr Riekert testified that there was no query from Mr Demler until Broedershoek’s invoice was delivered. Mr Riekert testified that the excavator stayed within the pegged-out route as indicated by Mr Human. Mr Riekert testified that certain charges were levied while the machine was not running because the operator had to wait for Mr Human for further instructions. Mr Riekert testified that those amounts were included on the invoice. In his testimony agreed that in terms of the agreement reached with Saragossa, such charges could not be levied. He conceded that those charges had to be subtracted from Broefershoek’s invoice.

[20] Mr Riekert testified that the first time he met Mr Demler was when they had a meeting over the problems with the road. Mr Riekert

was under the impression that Mr Human represented Saragossa when the agreement was concluded. Mr Riekert testified that his first

engagement with Mr Human was when Mr Human called him to enquire about the excavator. The discussion with Mr Human over the availability of the excavator took place on 24 or 25 September 2017. Mr Riekert testified that he expected a call from Saragossa after he had spoken to Mr Piso. Mr Riekert testified that Mr Piso informed Mr Riekert that the price agreed with Saragossa for the excavator would be R370.00 per hour. Mr Riekert charged the same amount for Broedershoek’s excavator.

[21] Mr Riekert was referred to correspondence that flowed between him and Mr Demler as well as the invoice that was sent to Sarragossa

for payment. These documents were discovered for purposes of the trial in terms of the Rules. Correspondence was directed by Mr

Riekert to Mr Demler and Mr Piso. The correspondence related to the payment of Broedershoek’s invoice to Sarragossa. Mr Demler

responded to Mr Riekert’s enquiries over payment of Broedershoek’s invoice directly to Mr Riekert. Mr Demler dis not include Mr Piso in this correspondence.

[22] In Mr Demler’s e-mail to Mr Riekert in response to Broedershoek’s invoice, dated 10 December 2017, Mr Demler unequivocally referred to Broedershoek’s excavator and informed Mr Riekert that his (i.e, Mr Riekert’s) calculations does not “consider” the alleged damages caused due to the incorrect operation of the excavator and also did not include a calculation of the costs of the wasted diesel. Mr Demler requested Mr Riekert to issue a credit note after deducting the costs Mr Demler was of the view that the damage was caused by Mr Riekert’s excavator and operator.

[23] In his response to Mr Demler’s e-mail, dated 11 December 2017, Mr Riekert informed Mr Demler that Mr Riekert’s understanding was that Mr Demler’s “arrangement” with Mr Piso was that Mr Human would be in charge of the “operations”

and therefore only the rate for the excavator was charged. Further in this e-mail, once again referring to Mr Piso, Mr Riekert tells Mr Demler that his arrangement was with Mr Piso that Mr Human was supposed “…to be there”. In this context Mr Riekert says to Mr Demler that either Mr Demler or Mr Human must too take responsibility for the mistakes with the road. Mr Demler did not respond to Mr Riekert’s e-mail.

[24] Broedershoek’s invoice was addressed to Sarragossa. It is dated 30 November 2017. It appears from the e-mail response of Mr

Depler referred to above, that the invoice was sent to Mr Demler on 6 December 2017. The invoice recorded the hours charged for the excavator as well as the tariff and the costs of the transport of the excavator to the farm.

[25] Under cross examination, Mr Riekert testified that he was not aware of the conversation Mr Piso had with Mr Demler and Mr Human when they met with Mr Piso over the proposed road. Mr Riekert maintained that the excavator and the operator did not waste time.

The terrain was steep and it took more time for that reason to excavate the road. Mr Riekert could not say how many hours were

wasted. According to Mr Riekert, wasted time could not be contributed to the work that was incorrectly done as neither Broedershoek nor its operator was to blame if the route that was pegged out by Mr Human for the road was wrong.

[26] Mr Riekert denied that it was as a result of the operator’s mistake that the road was too wide because the operator confined

himself to the route that was pegged out by Mr Human. Mr Riekert said that he cannot accept liability when the hirer of the excavator gave wrong instructions to the operator. Mr Riekert remained adamant that he only hired out the excavator and the operator and what Saragossa did with the machine and how they instructed the operator had nothing to do with Broedershoek. Mr Riekert testified that the operator and the excavator excavated within the limits of the excavator’s ability. Mr Riekert testified that an excavator cannot finish a road. Mr Riekert was adamant that Mr Piso attended the meeting with Mr Demler and Mr Human over their complains about the road only because he wanted to keep Mr Demler and Saragossa happy. Mr Riekert confirmed that Mr Piso personally operated the excavator in order to fix the road.

[27] Mr Piso testified that Piso Grondverskuiwing hires out earthmoving equipment. Piso Grondverskuiwing is not in the business of building roads. Mr Human called Mr Piso in order to enquire whether Mr Piso had an excavator that was available. Mr Demler called Mr Piso and told him that he wanted to meet with him on the farm. Mr Piso attended a meeting on the farm with Mr Human and Mr Demler. A

Google Earth map was shown to Mr Piso. The map indicated where Saragossa wanted to build the road. Mr Piso advised Mr Demler and Mr Human that an excavator would be the most suitable for the building of the road. Mr Human agreed with this proposal. Mr Piso testified that he could assist with an excavator and agreed to the rates for the excavator. It was also agreed that Mr Human would put out the pegs indicating the route of the road because apparently, Mr Human had some experience in earthmoving works. Mr Human would see to the work to be done by the excavator and Mr Piso agreed that he would also assist.

[28] Mr Piso testified that he told Mr Demler and Mr Human at the meeting that he did not have an excavator available at that moment and that his excavator may only become available in two weeks’ time. After two weeks, when Mr Piso’s excavator did not become available, Mr Piso contacted Saragossa’s offices and spoke to a lady. He wanted to get hold of Mr Demler. The lady told Mr Piso to speak to Mr Human. Mr Piso called Mr Human and told him that his excavator was not available and that he knew someone whose excavator might be available. Mr Piso gave Mr Human Mr Riekert’s particulars. Mr Piso called Mr Riekert and told him Mr Human would call him over an excavator. Mr Piso was not aware of any further arrangements that were made between Mr Human and Mr Riekert. Mr Piso testified that he was under the impression that Mr Human was employed by Saragossa.

[29] In his testimony, Mr Piso denied that he was contracted to build the road. Mr Piso maintained that he was only requested to provide an excavator to Saragossa and to assist with advice. Mr Piso testified that he had no part in the final arrangements between Mr

Riekert and Mr Human to get Broedershoek’s excavator to Saragossa. Mr Piso became aware of the problem with the road when Mr Riekert contacted him after the problem with the road arose. Mr Riekert wanted Mr Piso’s assistance because Saragossa was his (Mr Piso’s) client. Mr Piso did not want to lose Saragossa as a client. Mr Piso wanted both Saragossa and Mr Riekert to be happy. Mr Piso testified that he only wanted to give advice when the problem with the road arose.

[30] Mr Piso was also referred to the correspondence that was discovered. On 2 October 2017, Mr Piso responded to an e-mail from Sarragossa pertaining to Mr Demler’s understanding that Mr Piso would provide a trailer and a container to transport diesel to the excavator. Mr Piso responded in clear terms that the he had forgotten about the bowzer because the excavator was not his. Mr Piso testified

that he answered the e-mail because he normally provides a bowzer together with Piso Grondverskuiwing’s earthmoving equipment. Mr Piso testified that he answered the e-mail because wanted to assist because Mr Demler was his client and that he wanted to protect the relationship with Saragossa. Mr Piso still sees Saragossa and Mr Demler as his clients.

[31] In cross examination, Mr Piso was referred to the correspondence that flowed between Mr Riekert and Mr Demler. Mr Piso testified that he did not react to this correspondence that was sent to Mr Demler by Mr Riekert. Mr Piso confirmed that he had accompanied

Mr Riekert to the mountain in order to give Mr Riekert advice. Mr Piso suggested that Mr Demler and Mr Riekert to agree on how the problem with the road could be resolved. Mr Piso offered to come and fix the road himself. Mr Piso denied that he was angry when he saw what the operator had done. Mr Piso denied that he had a contractual responsibility in respect of the road. Mr Piso remained adamant that he assisted in order to keep Mr Demler and Saragossa happy. Mr Piso operated the machine for approximately three to four hours. Mr Piso maintained that he had no responsibility with regards to the construction of the road and that he had no responsibility to get environmental authorisation for the road.

[32] Mr Olindo Galisto Singano was the operator of the excavator. He has been in Broedershoek’s employment since 2011. Mr Singano has been an operator on excavators since 2009. Mr Singano confirmed that Mr Human instructed him to open a road and that Mr Human planted poles to indicate the route of the road. Mr Singano confirmed that the logbook he completed for the excavator. Mr Singano also confirmed that he had to wait on some occasions for Mr Human before he could proceed with the excavation. Mr Human planted sufficient poles to indicate the route for approximately one week’s work.

[33] According to Mr Singano, Mr Human indicated that the existing road had to be a bit wider than the existing track. Mr Singano denied

that he has made a mistake. He ascribed the problem with the road as a misunderstanding. Mr Singano accompanied the truck that transported the excavator to Saragossa. Mr Singano confirmed that Mr Riekert told him to go to Saragossa. Mr Singano proceeded with the work for a week after the poles were planted without anybody checking on his progress. Mr Human only came back five days after the work had commenced. Upon his first inspection, Mr Human told Mr Singano that the road was too wide. Despite this, Mr Human added further poles to mark the route and left. Mr Singano remained adamant that he excavated the road along the markers that were planted by Mr Human. Mr Singano denied that he told Mr Human that he had never built a mountain road.

[34] Mr Demler testified that he is a shareholder and a director of Saragossa. He has known Mr Piso since 2014. In 2014, Mr Piso assisted Saragossa with roads and the ripping of fields. He testified that he and Mr Piso worked well together in 2014.

[35] Mr Demler testified that Mr Human runs his own company and assists Saragossa with fencing and small construction projects. Mr Human is not formally involved in Saragossa. Mr Demler testified that he did not know Mr Riekert before he met him with Mr Piso on the

mountain when the problems with the road was discussed. Mr Demler confirmed that he met with Mr Piso, Mr Human and Mr Kruger. At the meeting, they discussed a campsite and the road that had to be built. At the meeting maps and GIS information were considered. Mr Demler testified that Mr Piso was positive that he could do the work and understood the idea that the road had to be invisible and not a scar on the mountain if possible. Mr Demler wanted a bulldozer but Mr Piso proposed that an excavator be used. Mr Demler trusted Mr Piso’s advice. Demler testified that he was not aware of any statutory requirements for the building of the road and that he was not concerned because Mr Piso previously assisted him with a road. For this reason, Mr Demler did not foresee any problems with the road.

[36] Mr Demler testified that Mr Human had done a lot of the preparation work for purposes of the road. Mr Demler trusted Mr Human. The route was discussed with Mr Piso and after discussing the time frames, Mr Piso informed Mr Demler that his machine was busy elsewhere. Mr Demler testified that he cannot remember when the prices were discussed. However, he knew that an excavator was cheaper than a bulldozer. Mr Demler testified that the machinery would be provided by Mr Piso. Mr Demler testified that, when the meeting finished, Mr Demler and Mr Piso had concluded that Mr Piso would start the work while Mr Demler was in Germany.

[37] The next knowledge Mr Demler said he had over the road was when he came back from Germany on 20 October 2017 and a photo was sent to him by one of his neighbours showing a landslide along the road. Mr Demler went up the mountain on 11 October 2017. He wanted to see what the damage was. He reported the damages to Mr Piso on 22 October 2017. They agreed that they would go up the mountain to see for themselves. Mr Demler testified that he was angry and shocked about what he saw on the mountain. Only then Mr Demler realised that the work was not done by Mr Piso. Mr Piso confirmed that there was a problem with the road and that he would fix the road himself. According to Mr Demler, the end product of the road was never reached because the road was not compacted. Mr Piso’s version that he did not agree to build the road was put to Mr Demler. His answer was as follows: “Then we have different perceptions.”

[38] It was put to Mr Demler under cross examination that Mr Piso said that the only agreement was that Mr Piso would hire the equipment and that Mr Demler would do the work himself. Mr Demler answered that he could not do the work himself. Mr Riekert’s version was put to Mr Demler. He answered that he did not know that version. Mr Demler also said that Mr Human was not entitled to represent Saragossa.

[39] Mr Demler testified that Mr Human was never in charge of the road construction. All that Mr Human had to was to peg out the route

of the road. Mr Demler denied any mistakes were made by anyone who was employed by Saragossa. Mr Demler confirmed that an invoice was sent to Saragossa by Broedershoek and that neither he nor Sarragossa contacted Mr Piso to enquire why an invoice was received from Broedershoek. Mr Demler testified that he did not care if Mr Piso got someone else to do the work because he relied on Mr Piso’s expertise. Mr Demler testified that Mr Human did not inform him that it was not Mr Piso’s excavator but Mr Riekert’s excavator and operator that were excavating the road. Mr Demler confirmed that he had no discussion with Mr Human over the road while he was in Germany. Mr Demler testified that he knew nothing about Mr Riekert’s agreement with Mr Human.

[40] Mr Marius Ernest Human testified that he became involved at Saragossa around 2014/2015. He knows Mr Piso well. He did not know Mr Riekert before the time. Mr Human confirmed that he was involved in the building of the road. The planning was that he would be able to get access to the mountain for purposes of fencing also by using the road. Mr Human confirmed that he assisted with the planning of the road. He says that he has experience in the building dams, channels, and roads although he is not an expert. Mr Human told Mr Demler that he knew Mr Piso and that he no problems with Mr Piso’s work.

[41] Mr Human testified that he and Mr Kruger were present for the entire meeting when the road was discussed with Mr Piso. Mr Human thought that the bulldozer would be appropriate. Mr Piso said that an excavator would be appropriate and easier to use than a bulldozer. Mr Piso confirmed that it could be done. Mr Human confirmed that Mr Piso informed Mr Demler that his excavator was not available. At the meeting, Mr Piso informed Mr Demler that he knew somebody whose excavator might be available. Mr Human says that no price was discussed when he was at the meeting. Mr Human testified that he became involved again when he was informed that the excavator was on its way to Saragossa. Mr Human thinks that somebody from his office may have called him and told him that the excavator was on its way. He did not know who the person was. Mr Human testified that he marked out the route up to the 180O bend in the road. Mr Human denied that he told the operator that the road had to be wider. Mr Human denied that he had to prescribe to the operator what he had to do. All he had to do was to check on his progress. Mr Human denied that Mr Piso called him and told him that his machine was not available. It was put to Mr Human that Mr Riekert testified that he received a call from Mr Piso and that Mr Riekert called Mr Human and then concluded a contract with him for the excavator at R370.00 per hour. His answer was the following: “Dit sou nie gebeur nie.”

[42] Mr Human testified that he checked on the operator approximately four to five days after the work commenced. He saw that the width of the road was not as agreed upon. Mr Human confirms that the meeting was called upon Mr Demler’s return to discuss the problems with the roads. Mr Human testified that Mr Piso was not happy with what he saw. The outcome was that Mr Piso would go to the mountain personally and would repair the road by returning some of the material that was excavated. Mr Human testified that he could have spoken to Mr Riekert over the phone. He could not say whether the tariff was the same as the tariff Mr Piso would have charged. Mr Human could also not remember that Mr Piso called him to tell him that his machine was not available. Mr Human says that he does not know with whom the contract was concluded. His impression was that Mr Piso was in charge. Mr Human confirmed that according to him, Mr Piso had to build the road. Mr Human confirmed that he did not communicate with Mr Demler over the road. Mr Human testified that he could not remember whether Mr Piso called him to tell him that his machine was not available. Mr Human testified that he cannot remember that Mr Piso told him that he would send another machine.

[43] Mr Frank Kruger, in his testimony, mainly confirmed that a meeting was held prior to the road commencing and that he assisted with the planning of the road. Mr Kruger also confirmed that he was present on the mountain when the problems with the road was discussed and that Mr Piso was upset at that meeting.

Evaluation

[44] As the parties do not require the issue of the breach of the alleged agreement between Sarragossa and Piso Grondverskuiwing be determined, I confine myself to determine who the contracting parties were and what agreement was concluded. I need to mention that during the hearing and after Mr Demler had made a concession that the agreement Sarragossa alleges would not have been between Sarragossa

and Mr Piso, I need not consider Mr Piso as contractual counterpart. In addition, Sarragossa informed the court that it no longer pursued relief against Mr Piso.

[45] I am not required to determine the truth. I am required to determine what was proven by the evidential material before me. Said differently, I must resolve factual disputes. I am confronted by two conflicting versions – that of Mr Demler on the one hand and that of Mr Piso and Mr Riekert on the other hand. Both versions cannot co-exist. Either the one exists or the other. A finding on who the contacting parties were will show to the terms of the agreement pertaining to the road. If Mr Demler’s version prevails, Broedershoek is not entitled to payment from Sarragossa. In that event, Piso Grondverskuiwing and or Broedershoek may be liable to Sarragossa for breach and damages.

[46] Both versions rely on the existence of an oral agreement. Broedershoek had to prove an oral agreement in terms of which it agreed to hire its excavator to Sarragossa for a fee, that it did provide the excavator, that the excavator had worked and that it is therefore entitled to payment of its invoice. Sarragossa had to prove that it had entered into an oral agreement with Piso Grondverskuiwing

in terms of which Piso Grondverskuiwing would construct the road for Sarragossa at an agreed price.

[47] In order to determine what was proven, I must evaluate the evidential material before me. In evaluation of the parties’ evidence before me, I take guidance from what was said in Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA) by Nienaber JA, at paragraph 5:

“The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’s candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’s reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case,

which will doubtless be the rare one, occurs when a court’s credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail.”

[48] I have purposefully spent much time in setting out what the evidence before me was. I did so because I deemed it necessary so that my application of the principles set out in Stellenbosch Farmers’ Winery Group Ltd may be properly considered.

[49] The starting point to determine factual disputes is to consider the credibility of the evidence of the various factual witnesses. I am unable to, from an impression of the veracity of the Mr Demler, Mr Riekert. Mr Piso and Mr Singano’s testimony even having regard to the subsidiary factors listed in Stellenbosch Farmers’ Winery Group Ltd. make an adverse credibility finding in respect of their evidence.

[50] I have doubt over the credibility of Mr Human’s testimony. Although I cannot say that Mr Human lied, he did not make a good overall impression upon me as witness. In some important instances he was evasive and in other instances, especially when he was confronted with the direct versions of Mr Piso and Mr Riekert, he conformed his version by saying that what Mr Piso and Mr Riekert

alleges may have happened but that he was not sure because he could not remember. To the extent that Sarragossa sought to rely upon Mr Human’s testimony to corroborate Mr Demler’s version, I, with little hesitation, find no such corroboration. In addition, Mr Human had a reason to be bias in this testimony because, after all, he was responsible for the marking of the road’s route and took it upon himself to check what Mr Singano was doing.

[51] Being unable to make credibility findings in respect of Mr Demler, Mr Riekert, Mr Piso and Mr Singano’s evidence and having regard to the concerns I have expressed over Mr Human’s testimony, I proceed to decide the matter on the probability of the

different versions. The version that is the most probable must carry the day.

[52] In my view, the building of any road is a rather technical undertaking, especially in these circumstances where the road is at heavy slopes and in a sensitive area. It requires experts and is normally foreshadowed by thorough technical planning. I simply do not

believe that anyone would merely leave the construction of a road to the devices of a person who apparently has some experience in earthmoving works and who is expected to mark out a route without any proper reference to a carefully predetermined route plan. Even more striking, is that Mr Singano was left to his own devices for almost a week without carefully monitoring his progress and his work.

[53] I can also simply not accept that the work to build a road of this kind will be given out and the obligations to do so would simply

be accepted by a handshake without any written recordal or clearly defined deliverables.

[54] Neither Mr Demler nor Mr Human once question the presence of Mr Riekert’s excavator and the operator’s involvement in

the road construction. He does not even consult Mr Piso, who he says had agreed to build the road, over this issue. Sarragossa does not query Broedershoek’s invoice in the sense that it is not obliged to pay the invoice because it had not contracted with Broedershoek.

[55] According to Mr Demler, Mr Riekert and Mr Singano caused the damage to the road yet, Mr Demler has no objection to Mr Riekert and

Mr Singano continuing with the work. In my view, it does not matter that Mr Demler contacted Mr Piso when the problem with the road arose. This fact also does not, in my view, disturb the probability of Mr Demler’s version against Mr Piso and Mr Riekert’s

version.

[56] Mr Demler argued that Mr Piso’s attendance at the meeting where the planned road was discussed, his offer to provide assistance and his personal assistance and involvement in the fixing of the road supports the probability of Mr Demler’s version. In

addition Mr Demler argued that it would make no commercial sense for Mr Piso to get involved in the fixing of the road if there was no benefit for him or Piso Grondverskuiwing. As counter to this argument, Mr Piso’s explanation for his involvement in the road must be considered. Mr Piso maintained that he only assisted because he wanted to assist Mr Demler so that he could preserve Mr Demler as client. In my view this makes sense if Mr Piso did assist because he was aware that further earth moving work would follow after the road. Off course it would have been important for Mr Piso to keep Mr Demler happy so that Piso Grondverskuiwing would not lose out on the future work.

[57] Most telling for me was Mr Demler’s response in cross examination when Mr Piso’s version was put to Mr Demler that Mr

Piso denies that the contracted to construct the work. Mr Demler’s answer was that in his (Mr Demler’s) mind, the contract was concluded. It is not about what Mr Demler thought. It is about what the parties agreed for if Mr Piso did not share Mr Demler’s

perception, there was no consensus.

[58] The probability of Mr Piso’s version was also challenged on his e-mail response to the bowzer query. Mr Piso gave his explanation. His explanation is probable and therefore accepted.

[59] For these reasons and on a factual basis, I find Mr Piso and Mr Riekert’s version the most probable. I reject Mr Demler’s

version over the agreement he said he concluded with Mr Piso. What therefore follows is that I find that the agreement was between

Sarragossa and Broedershoek in terms of which Broedershoek hired its excavator to Sarragossa at R 370 per hour.

[60] There was no dispute that the excavator did the excavation and there was no issue over the hours logged. There was no dispute over

the rate per hour logged. What became an issue was the time that the excavator had spent on the work to the road that was incorrect

according to Mr Demler and Mr Human.

[61] I am going to decide the issue of the hours allegedly wasted upon the pleadings as they stand for that issue should have been raised in the pleadings by way of a counterclaim to Broedershoek’s claim against Sarragossa. In Sarragossa’s plea to in Broedershoek’s claim for payment of its invoice, that issue is also not raised. Sarragossa merely denies that it is indebted to Broedershoek. It also does not pertinently plead any breach by Broedershoek. I therefore do not consider Sarragossa’s attempt to introduce this issue through Mr Demler’s evidence.

[62] Mr Riekert conceded that Broedershoek was not entitled the claim the waiting hours that was included in the invoice and furnished the amount for which the invoice should have been excluding the hours it had charged for waiting. The amount was recorded as R 91

885, 14.

[63] In the premises, I make the following order:

1. The plaintiff’s claim is dismissed;

2. Judgment is granted in favour of the defendants.

3. The plaintiff is ordered to pay the first and second defendants the amount of R 91 885, 14 plus interest at a rate of 10% per annum, calculated daily reckoned from the date of delivery of the first and second

defendant’s counterclaim to the date of payment, both days included;

4. The plaintiff is ordered to pay the defendants’ costs.

Roelofse AJ

Acting Judge of the High Court

DATE OF HEARING: 10 to 13 February 2020

DATE OF JUDGMENT: 25 February 2020

APPEARANCES

PLAINTIFF: Adv S Wagner SC

INTSTRUCTED BY: Frey Attorneys

FIRST AND SECOND DEFENDANTS: Mr C Smith of Christo Smith Attorneys

THIRD AND FOURTH DEFENDANTS: Adv J Mÿburg

INSTRUCTED BY: Du Toit Smuts and Partners

[1] Exhibit “C”. it can clearly be seen that one side of the road is clearly defined with a clear line while the other side of the road i.e. the side where the mountain slopes to is not well defined. The side where the mountain slopes to