Wimpey v HPS Africa Consulting Engineers (Pty) Ltd (5268/19) [2019] ZAGPJHC 266 (16 August 2019)

Wimpey v HPS Africa Consulting Engineers (Pty) Ltd (5268/19) [2019] ZAGPJHC 266 (16 August 2019)

The court found that the defendant made an unconditional tender in full and final settlement of the plaintiff's claim, which was accepted in accordance with rule 34(6). The defendant's subsequent attempt to impose a condition regarding delivery of drawings and to withdraw the tender was inconsistent with the clear terms of the tender and the rules. There is no provision in the rules for withdrawal of a tender after acceptance, and no exceptional circumstances were shown to justify such withdrawal. The tender and its acceptance constituted a binding agreement, and the defendant was obliged to pay the amount tendered, interest, and costs. The application to strike out was dismissed as the...

Citation
[2019] ZAGPJHC 266
Parties
Plaintiff: Roger Wimpey; Defendant: HBS Africa Consulting Engineers (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
16 August 2019
Case Number
5268/19
Procedural Posture
Civil Judgment / Application for Judgment Following Acceptance of Unconditional Tender
Outcome
Application granted. Judgment for the plaintiff.
Judges
Vally
Legal Topics
Rule 34 Tender, Contractual Settlement, Unconditional Offer, Attorney and Client Costs
Civil Procedure Commercial and Corporate Rule 34 Tender Contractual Settlement Unconditional Offer Attorney and Client Costs

Case Brief

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Parties

Roger Wimpey

Plaintiff

HBS Africa Consulting Engineers (Pty) Ltd

Defendant

Procedural Posture

Civil Judgment / Application for Judgment Following Acceptance of Unconditional Tender

Legal Issues

  1. 1 Whether the defendant may withdraw an unconditional tender after acceptance by the plaintiff.
  2. 2 Whether the defendant's obligation to pay is subject to a tacit condition regarding delivery of drawings.
  3. 3 Whether the application to strike out portions of the replying affidavit should succeed.

Ratio Decidendi

The court found that the defendant made an unconditional tender in full and final settlement of the plaintiff's claim, which was accepted in accordance with rule 34(6). The defendant's subsequent attempt to impose a condition regarding delivery of drawings and to withdraw the tender was inconsistent with the clear terms of the tender and the rules. There is no provision in the rules for withdrawal of a tender after acceptance, and no exceptional circumstances were shown to justify such withdrawal. The tender and its acceptance constituted a binding agreement, and the defendant was obliged to pay the amount tendered, interest, and costs. The application to strike out was dismissed as the...

Court Disposition

Application granted. Judgment for the plaintiff.

Orders

  • The defendant is to pay the plaintiff the sum of R256,695.63.
  • The defendant is to pay the plaintiff interest on the aforesaid amount at the rate of 10% per annum calculated from date of summons to date of payment.