Southern Lesotho Construction (Pty) Ltd v MNM Construction (Pty) Ltd and Others (CIV/APN/347/2004 )

Case No: 
CIV/APN/347/2004
Media Neutral Citation: 
[2004] LSHC 157
Judgment Date: 
15 December, 2004

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CIV/APN/347/2004 IN THE HIGH COURT OF LESOTHO

In the matter between:-

SOUTHERN LESOTHO CONSTRUCTION (PTY) LTD APPLICANT

and

MNM CONSTRUCTION (PTY) LTD 1st RESPONDENT

EDUCATION FACILITY UNIT 2nd RESPONDENT

MINISTRY OF EDUCATION 3rd RESPONDENT

ATTORNEY GENERAL 4th RESPONDENT

JUDGMENT

Delivered by the Honourable Mrs Justice A.M. Hlajoane on the 15th December 2004.

This is an application for an interdict of the first Respondent from continuing to build unilaterally against the spirit of the Joint Venture, Litsebe Primary School. First Respondent is also being asked to account and disclose all financial dealings in relation to the Joint Venture to the Applicant. Second Respondent on the other side is being asked to withhold all moneys from first Respondent in relation to the

-2-Joint Venture pending finalisation of this matter.

It has been the Applicant's case that in terms of the Agreement signed between him and the first Respondent, they had entered into a co-operation to tender jointly under the first Respondent's name fort he construction of a list of Four Primary Schools. The said Agreement has been attached to the Applicant's founding papers as Annexure "B".

It was a term of the Agreement that the following rules and conditions should apply, in case of winning of any of the tendered schools; that

- All expenses for the execution of the project shall be shared on a fifty fifty basis by the two companies.

- In the same token, all profits shall be shared equally by the two companies.

The four schools were:

- Montsa Primary School

- Litsebe Primary School

- Ntsupe Primary School

- and Thaba-Khubelu Primary School.

According to the Applicant around the 2nd December, 2003 there was an invitation to tender for the building of Litsebe Primary School. That tender was awarded to the Joint Venture, so that the tender was to be dealt with in accordance with he joint venture agreement.

The first Respondent on the other hand showed that it had not been possible to put the contract into effect due to some intervening impossibility as the Ministry of

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Education would not allow them to tender jointly. In response to that, the Applicant pointed out that in submitting tenders both parties used the same name MNM Construction, so that there was just no way that it could be said they were separate.

What is common cause is that in terms of the contract, Joint Venture Agreement, the parties to the agreement would tender under the first Respondent's name for various schools as indicated in the Agreement. On reading the terms of the Joint Venture Agreement, one finds that they are very clear and very simple.

Parties agreed to cooperate and tender jointly under first Respondent's name. As rightly pointed out by the Applicant, parties never agreed to contract on the basis of a supposition on the question of whether or not any of them may tender alone in case inviter does not approve both companies to build jointly. A supposition cannot be created but has to be so expressly stated in the contract, Dutch Reformed Church Council v Croker 1953 (4) S.A. 53. In the absence of any such supposition in the contract, the parties were bound by the terms of the contract, and had therefore to abide by it.

Van der Merwe in his book, general principles on contract p.263 has this to say

that,

"The unusual manner in which contractants provide for uncertainty about a future event which may after their obligations take place is by qualifying an obligation by means of a condition."

Looking at the parties's contract, parties never qualified their obligation with any conditions.

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Both parties signed the contract, the same parties that deposed to affidavits in this case. The intentions of the parties could be gathered from the words used in the Agreement which they have both signed. Their so signing the Agreement is to be taken as enough proof that signifies that they agreed to the terms of the contract, Van Der Merwe at 277. The contract that they both entered into, that is the Applicant and first Respondent was such that would not allow them to later change and be heard to verbally say they did not tender jointly or work jointly. The contract as it stands would not allow them to say that, First National Bank of S.A Ltd vs Lynn No 1996 (2) S.A 339.

First Respondent has challenged the Applicant for having chosen to approach the Court seeking for an interdict. This was raised for the first time in his heads of argument, thus denying the Applicant the chance of responding. He has also raised for the first time in his heads that there was a dispute of fact that could not be resolved on papers, thus deny Applicant the opportunity to respond to that. It is not only for the applicant who stands or falls by his founding affidavits, Attorney General v Motaung C of A (CIV) 18/2001, the Respondent also has to put forth his defence in his answering papers.

First Respondent also alleged that the Applicant withdrew from the contract as he realized that the place was inaccessible. That has just been an allegation as nothing was attached to the papers to show that in fact Applicant withdrew from the contract. Since it was the first Respondent who alleged the withdrawal, he ought to prove it and in the absence of any such proof they must fail in their defence.

Since the first Respondent has not denied that they entered into a Joint Venture Agreement with the Applicant, but only relying on a supposition not forming part

-5-or not stipulated in the Agreement, the Applicant must succeed.

The Application succeeds with costs.

A. M. HLAJOANE JUDGE

For Applicant: Mr Habasisa For Respondent: Mr Molapo