THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case No: 230/2019

In the matter between:

PASSENGER RAIL AGENCY OF SOUTH AFRICA
APPELLANT

and

SBAHLE FIRE SERVICES CC
RESPONDENT

Neutral citation: Passenger Rail Agency of South Africa v Sbahle Fire Services CC
(230/2019) [2020] ZASCA 90 (4 August 2020)

Coram:
PETSE DP, MBHA, MOCUMIE and DLODLO JJA and MABINDLA-
BOQWANA AJA

Heard:
18 May 2020

Delivered:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on the Supreme
Court of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be have been at 10h00 on 4 August 2020.

Summary:
Contract – interpretation of agreement entered into between the appellant
and the respondent in respect of which the respondent rendered fire and safety
consultancy services to the appellant for a prescribed fee – whether the appellant
breached the contract – whether the court a quo erred in dismissing the appellant’s
claim in reconvention.

______________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Raulinga J sitting as
court of first instance):
1 The appeal in relation to the second claim succeeds with costs, including costs
consequent upon the employment of two counsel.
2 The appeal in relation to the claim in reconvention is dismissed.
3 The order of the court a quo is set aside to the extent reflected below and substituted
with the following:
‘The action in respect of the second claim is dismissed with costs.’
______________________________________________________________________

JUDGMENT
______________________________________________________________________

Dlodlo JA (Mbha JA concurring):

[1] Sbahle Fire Services CC (Sbahle), instituted action against Passenger Rail
Agency of South Africa (PRASA) for payment of R1, 227 999.21 and R9 095 968.47 in
respect of fire and safety consultancy services respectively, rendered to PRASA at the
latter’s Mabopane Bridge Development Project (the project) over the period from June
2010 to August 2013. On 15 October 2013, PRASA paid to Sbahle an amount of
R2 034 938.19 for fire consultancy services rendered over the period June 2010 to
November 2012. According to Sbahle, the amount paid by PRASA included the sum of
R1, 227 999.21 which Sbahle had claimed for fire consultancy services. However,
PRASA instituted a claim in reconvention wherein it claimed the repayment of the
R2 034 938.19 it had paid to Sbahle.

[2] In view of the fact that the aforementioned payment effectively settled what
Sbahle had claimed in claim 1, it did not proceed with that claim. It, however, persisted
with claim 2. The latter claim is in respect of Safety Consultancy fees. Sbahle relied on

the clause of the agreement which it attached to the particulars of claim headed ‘fees’
read in conjunction with a letter written to Sbahle on behalf of PRASA dated
18 December 2018. The project for fire and safety consultancy was intended to
commence on 2 January 2009 and was due for completion on 31 May 2010. At all
relevant times, it was common cause that the project did not start on the scheduled date
but that it was extended beyond 31 May 2010 to at least August 2013.

Background facts
[3] During 2008, PRASA embarked on the building of a bridge in a project known as
‘Mabopane Bridge Redevelopment Project.’ The necessary procurement processes
were followed and on 18 December 2008, the Northern Gauteng Regional Tender
Procurement Committee of PRASA appointed Sbahle as Fire and Safety Consultant for
the project. Letters of appointment setting out the terms and conditions of the contract
were addressed to Sbahle. The total fee of the project in respect of the fire consultancy
services was fixed at R796 185.72 excluding value added tax (VAT) whilst the fee for
the safety consultancy services was 5 per cent of the value of the project cost which
was estimated at R134 million excluding VAT.

[4] Both contracts in respect of fire and safety consultancy services expressly
provided that should the estimated project value decrease, the respective specified
tariffs of the project costs should be applied to the final value. Alternatively, should the
estimated project value increase, the services will be free until the completion of the
project on 31 May 2010. As at 4 April 2011, PRASA had paid Sbahle a sum of
R690 001.43 in respect of fire consultancy services. In respect of safety consultancy at
the same date PRASA had paid the sum of R4 664 854.66 to Sbahle. The balance
owed to Sbahle in respect of safety consultancy and fire consultancy services was
R 1 232 607.84 and R 106 184.29 respectively.

[5] The parties differ in the interpretation of the contract. In respect of the safety
consultancy services, PRASA contended that the total fee for the services rendered
until the completion of project, regardless of the time period, was fixed at 5 per cent of
the total costs of the project. Accordingly, PRASA contended that it had paid in full the

total amount of fees due and payable to Sbahle, regard being had to the fact that the
project was not complete and still remained unfinished. PRASA’s contention was that
any further extension of time with a view to complete the project, did not bring about the
change of contract price as indicated in respect of both the fire consultancy and the
health and safety consultancy. In the of light of the disagreement on the interpretation of
the contract between the parties, PRASA’s submission before the Gauteng Division of
the High Court, Pretoria (the high court), was that the court ought to determine this
issue before the merits of the matter were dealt with.

[6] The clause in the agreement which must be interpreted is entitled ‘fees’ and
reads:
‘The client shall pay to the Consultant full remuneration for the performance by the Consultant of
the services in accordance with this agreement. The fee shall, be deemed to be inclusive
payment for the services and for all disbursement costs, expenses, overheads or profits of every
kind incurred or to be earned by the Consultant in connection therewith. If the Consultant is
required by the Client to provide material additional services by reason of any alterations,
project extension or modifications to the project as required by the Client, then the Client shall
pay to the Consultant additional amount in respect of the fee, commensurate with the additional
services performed by the Consultant. However, should the extent of extra work or alterations
that the same shall have been necessitated in whole or in part, by any negligent act, omission or
default on the part of the Consultant, the Client will not pay to the Consultant additional amount
in respect to the fee.’
The above clause must be read together with a letter from PRASA to Sbahle dated
18 December 2008. It reads as follows:
‘We, Intersite Property Management Services (Pty) Ltd (“Intersite”), acting on behalf of SA Rail
Commuter Corporation Limited (“SARCC”), have pleasure in confirming your appointment as
fire consultant, with specific reference to your proposal dated 09 December 2008 and
supplemented by the terms and conditions of this letter, the appointment shall, in relation to the
above-mentioned project, entail:
1. The client will not entertain any extra fees claims unless he introduces a substantial or
material change to the scope of the project.
2. The fee shall be paid in accordance with the agreed fee as per Annexure “A”

3. Should any ambiguity exist between this letter, and previous correspondence which has
taken place in connection with your appointment as Fire Consultant for this Project, the terms
and conditions of this letter shall take precedence.’

The pleadings
[7] In claim 1, Sbahle averred that on 18 December 2008 at Midrand, alternatively
Pretoria, it concluded an agreement with PRASA in terms whereof it was appointed as
the Fire Consultant in respect of the project. In concluding the agreement, Sbahle was
represented by Mr David Khuzwayo (Mr Khuzwayo) and PRASA represented by
Intersite Property Management Services (Intersite). Intersite was in turn duly
represented by Mr Pheko Moatshe (Mr Moatshe).

[8] The agreement concerning claim 2 is alleged to have been concluded in
December 2008. The express terms of the agreement that are relevant for purposes
hereof and which Sbahle was contractually bound to perform entailed the following:
‘(a) Compilation of a safety plan; (b) Assist in hazard identification and risk assessments; (c)
Compilation and facilitation of a risk profile; (d) SHE specification; (e) Relating to guidelines
within the disciplines of safety; (f) Site visits to assess and gather information for the compilation
of audit reports; (g) Health and Safety Committee recommendations reviewing; (h) Quarterly site
audits but not limited; (j) On-the-job health and safety awareness, etc; (k) To assist in
compliance with the basic legal requirements including; (l) Continual reporting to ensure
consistency between client and appointed contractors; (m) Health and Safety inspections; (n)
Health and Safety Committee meetings; (o) To ensure a safe/health work environment; (p)
Performing baseline health and safety audit to determine a degree of conformance within
requirements of occupations health and safety; (q) Providing detailed written reports highlighting
deviations found and suggestions for improvement/ rectification; (r) Providing assistance with
any part of the safety and health program.’
Up to 31 May 2010, Sbahle was entitled to a fee of R5 897 462.50 excluding VAT. The
additional terms were that fees would be deemed to be inclusive payment for services
and for all disbursements, costs, expenses, overheads or profits of every kind incurred
or to be earned by Sbahle in connection therewith. Importantly, the agreement provided
that if Sbahle was required by PRASA to provide material additional services by reason
of any alterations, project extension or modifications to the project as required by

PRASA, the latter would pay to Sbahle an additional amount in respect of the fees,
commensurate with the additional services performed.

[9] However, should the extent of the extra work or alterations have been
necessitated or come about as a result of default on the part of Sbahle, PRASA would
not be liable to Sbahle for any additional amount in respect of the fees. It is averred that
up to 31 May 2010, Sbahle was entitled to a total contract amount of R5 897 462.50
excluding VAT, over a period of 17 months payable in monthly tranches of R395 476.89
inclusive of VAT. Sbahle’s contention was that PRASA breached the terms of the
agreement by neglecting and/or failing to pay it for services rendered over the period
June 2010 to May 2012. Sbahle had issued invoices for this period, but as at May 2012
the total amount of R9 095 968.47 was outstanding and remained due and payable.

[10] In its amended plea, PRASA admitted that the project had not been completed
but it denied that Sbahle was still rendering services to it. PRASA pleaded that it did not,
at any stage, request nor require Sbahle to provide any services or material additional
services by reason of any alteration, project extension or any modifications thereof.
It was specifically denied by PRASA that Sbahle was rendering the same services as it
rendered before 31 May 2010. PRASA pleaded that Sbahle was entitled to and did
render the same services after 31 May 2010 in accordance with the extended period up
to 28 February 2012. According to the plea, the parties retained contractual prices
which remained the same after the extended period.

[11] Pleading to the claim in reconvention, Sbahle stated that the payment was made
in respect of the work done and services duly rendered by it to PRASA at the latter’s
instance and request. In effect, Sbahle pleaded that there was a legal obligation on
PRASA to effect the payment and it was not made ‘in bona fide but mistaken belief’.

Evidence
[12] The only evidence on record is that led by Sbahle. It called Mr Khuzwayo, who
testified that Sbahle is a close corporation that renders services of safety and
specifications and assists clients in sales and services of portable fire protection

designs and design layouts in fire protections. Mr Khuzwayo’s testimony is that the
nature of business Sbahle provides involves fire protection designing, installation,
servicing as well as sales of all types of firefighting equipment. Mr Khuzwayo explained
how Sbahle was appointed as consultant in relation to the project. He stated that Sbahle
designed the protection system for the project. It was Mr Khuzwayo’s evidence that
Sbahle had an obligation to obtain the certificate of occupancy when the building was
finished and the project was complete. It was Sbahle’s responsibility to appoint a fire
contractor, whose job was to install the fire protection system which Sbahle designed for
the bridge. Mr Khuzwayo testified that Sbahle was employed to serve as an agent for
the client in terms of health and safety. Sbahle had to make sure that the main
contractor Siyavuna, adhered to all safety rules in the project. Siyavuna was appointed
by PRASA to conduct the building work and Sbahle was appointed to supervise the
main contractor’s safety consultant who was on site on a full-time basis in terms of
safety.

[13] Mr Khuzwayo’s evidence was that Sbahle was responsible for devising safety
and health specifications. It had to conduct a baseline assessment for PRASA, as the
client. Sbahle also had to conduct a monthly audit and compile monthly reports in
relation to safety. Nkambule and Associates was appointed as the project manager,
represented by one Mr Ishmael Musiwa.

[14] Mr Khuzwayo testified that the project was scheduled to start in January 2009
and should have been completed on 31 May 2010. However, the project did not
commence as scheduled. He stated that when Siyavuna, the main contractor, moved on
site, numerous challenges faced the project, including the community wanting to dictate
their own rates to the main contractor. Another cause of delay, according to
Mr Khuzwayo was what he called the land issue on the western side where the bridge
was supposed to land. The owner of that portion of land did not want the bridge on his
property. As a result the architect had to change his designs. According to
Mr Khuzwayo’s testimony, this dispute impacted greatly on the project in that the
architect had to take out a number of stalls meant to be on the Mabopane side and
come up with a new concept altogether on the Mabopane side. According to

Mr Khuzwayo, the client also caused further delay when PRASA introduced new
developments in the project. For example, PRASA requested a derailment wall to be
built.

[15] Mr Khuzwayo testified that PRASA also wanted 265 extra stalls to be built on the
eastern side as none were going to be built on the western side. Mr Khuzwayo testified
further that there was a sudden realisation on the part of PRASA that there was a need
to build its offices underneath the bridge. All this work, according to Mr Khuzwayo, was
never catered for in the initial project and the main contractor had to complete it.
Sbahle’s work was to assist the main contractor in terms of safety and that it had to be
present   wherever the main contractor was, to ensure there was safety. Mr Khuzwayo
was specifically asked how the fact that the project was not complete by 31 May 2010
would have impacted on services rendered by Sbahle. His answer was that Sbahle’s
services were ongoing and as long as the main contractor was on site, Sbahle was
always required to be there on behalf of PRASA as the client. Mr Khuzwayo testified
that Sbahle’s services started in January 2009 and went on until November 2012. The
latter date is when the main contractor left the Mabopane site.

[16] It was Mr Khuzwayo’s evidence that the sum of R6 591 281.64 mentioned as
fees for safety consultation for a period of 19 months represented fees for the additional
work or services which Sbahle rendered to the project. According to Mr Khuzwayo, this
was broken down for PRASA so that it would understand what Sbahle was claiming.
Mr Khuzwayo was asked how he calculated the abovementioned amount. His
explanation was that Sbahle was employed to be in the project for 17 months and it had
to agree on a lump sum of R5.8 million. He explained that, however, from June 2010 to
January 2012, the amount for fire consultancy for the period of 19 months amounted to
R889 854.54. The latter amount, according to Mr Khuzwayo, represented time that
Sbahle spent on rendering services without being paid for additional services rendered.

[17] Mr Khuzwayo testified that when the time specified in respect of the contract
expired, he raised the issue with the PRASA project manager stating ‘my time is about
to be finished, what are we doing? Are we packing and going or what?’ But PRASA’s

project manager replied, ‘nobody is leaving here. Go back to your contract. That
contract does allow for extension’. Mr Khuzwayo told the high court that he was referred
to the alleged relevant clause in the contract. He emphasised that the claim was based
on extra work done from June 2010 until November 2012. When he was asked
specifically to define extra work, Mr Khuzwayo said it had to be borne in mind that the
scope changed. The change of the scope did not reduce the work but in fact it meant
extra work because the design had to change as a consequence of the variations
introduced to the original design of the building. PRASA was the one that wanted extra
stalls to be built and that, according to Mr Khuzwayo was not provided for in the original
design. Also, the bridge was supposed to land at a certain place on the eastern side,
the Mabopane side.

[18] Mr Khuzwayo was asked to produce the original design and instruction from
PRASA stating that Sbahle should redesign the works. In response, he stated the
following:
‘We all did our design as per that architectural concept. As we were busy with those designs
then the client said I have got a problem with the land issue. [The architect was requested to
reduce the bridge]. Now that had an impact on all of us who had already started designing as
per architect’s sizes. Now you have got to come up with the new design which is going to fit the
new specification or the new architectural concept. That is extra because you have already
been given the drawings with all the dimensions and all of a sudden that changes. When that
changes it impacts on your design. Then the client . . . when the client instructed the architect to
change the width of the bridge that was affecting us as well. Because we all had to wait for the
architect to come up with the new design.’

[19] Mr Khuzwayo testified that it was his view that PRASA anticipated that the
project may not be finished on the proposed date and time and that is the reason why
they inserted a clause in the contract which states that ‘if the consultant is required by
the client to provide material additional services by reason of any alterations, project
extension or modifications to the project as required by the client, then the client shall
pay to the consultant additional amount in respect of the fee, commensurate with the
additional services performed by the consultant’. That clause refers to extra payment to

Sbahle only if it was required by PRASA to continue. In Mr Khuzwayo’s view, Sbahle
was required or instructed by PRASA to continue in the project. In clarification, the court
asked Mr Khuzwayo whether Sbahle was not instructed by PRASA to continue in the
project. If that was so, that would have naturally affected the amount, as an extra
payment ought to have been made for the work that was to be conducted as a result of
the extension by PRASA and the necessity to change the design. Mr Khuzwayo
confirmed what was put to him. On being asked by the counsel representing PRASA
why must he be paid extra money - outside the contract, Mr Khuzwayo answered as
follows:
‘Remember our type of work especially the safety one depends on the main contractor, the
existence of the main contractor on site allowed us to be there. We do not build the wall. We
audit the health and safety inspections for the main contractor at all times. We do risk
assessment on site as the main contractor is continuing to work on site.’

The high court
[20] The high court found that it was clear from the wording of the agreement that the
parties agreed that PRASA would pay to Sbahle amounts in respect of the fee
commensurate with additional services performed. The high court relied on Sassoon
Confirming and Acceptance Co (Pty) Ltd v Barclays National Bank Ltd 1974 (1) SA 641
(A) at 646G in concluding that the language used in the agreement, its purpose, scope,
background and the context is such that it confirms the nature of the transaction
between the parties as it appears from the entire contract. The high court found that
Sbahle rendered the same services as it had done up to and including 31 May 2010 and
up to at least 28 February 2012. It found that the further services were an extension of
services contracted for and Sbahle was integrally involved with the project. As far as the
amount claimed by PRASA in the claim in reconvention is concerned, the high court
found that PRASA made payment to Sbahle pursuant to the latter’s invoice for the said
amount in respect of Fire Consultancy Services. The high court found Mr Khuzwayo to
be a credible witness and therefore found in his favour. The appeal, against the high
court’s judgment, is with the leave of this court.

Discussion
[21] It is convenient to begin with the claim in reconvention instituted by PRASA.
PRASA requires that the amount of R2 034 938.19 paid back to it on the basis that it
paid the same to Sbahle in error. It is common cause that Sbahle had issued an invoice
for this amount in respect of the fire consultancy services it rendered in the project in
terms of its contractual obligations. According to Mr Khuzwayo, the invoice relating to
this sum of money was issued at the request of PRASA. His evidence in this regard was
not at all contested. It is undisputed that prior to the institution of the claim in
reconvention, PRASA never demanded that this amount be paid back to it, nor did it
ever contend that payment was made in error. Importantly, PRASA led no evidence in
this regard.

[22] The high court found correctly that PRASA could not succeed with its claim in
reconvention. The claim in reconvention was therefore rightly dismissed. The
undisputed fact that Sbahle was paid on a contractual basis, as it contended, further
required that at the very least, the official of PRASA who made the payment, should
have explained why the payment was made. PRASA’s failure to call a witness in this
regard therefore justified negative inference. See in the latter regard Gleneagles Farm
Dairy v Schoombee 1949 (1) SA 830 (A); SOS Kinderdorf International v Effie Lentin
Architects 1993 (2) SA 481 (NM) at 489G-J. In order to succeed with a claim for the
repayment of money paid sine causa, the party claiming payment carries the onus of
proving the requirements of the applicable enrichment claim ie the condictio indebiti.
See in this regard Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue and Another
1992 (4) SA 202 (A) at 224; Senwes Ltd and Others v Jan van Heerden and Sons CC
and Others [2007] 3 ALL SA 24 (SCA). In addition, it must be shown that payment was
made in the bona fide and reasonable belief that it was owed. See in this regard ABSA
Bank Ltd v Leech and Others 2001 (4) SA 132 (SCA).

[23] As a general requirement for the condictio indebiti, the error that gave rise to the
payment must not have been an inexcusable error. In order to make a determination,
regard must be had to the particular circumstances wherein the payment occurred. The
court is called upon to exercise a value judgment. It is of course inappropriate to refine

the test of whether judicial exculpation is justified. The authorities state that a mistake
should have been neither ‘heedless nor farfetched’, that it should not have been based
on ‘gross ignorance’ and that it should have been neither ‘slack nor studied’. See in this
regard Bowman, De Wet and Du Plessis NNO and Others v Fidelity Bank Ltd 1997 (2)
SA 35 (SCA); Yarona Healthcare Network (Pty) Ltd v Medshield Medical Scheme [2017]
ZASCA 116; 2018 (1) SA 513 (SCA). It is of importance to stress that the error must be
reasonable, meaning that it must be excusable in the circumstances of the case. See,
Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue supra; Affirmative Portfolios CC
v Transnet Ltd t/a Metrorail [2008] ZASCA  127; 2009 (1) SA 196 (SCA) paras 23 to 29.
There was no evidence from PRASA whatsoever before the court explaining why the
payment was allegedly made in error nor why it was a reasonable mistake.

[24] I am of the view that the evidence of Mr Khuzwayo was not at all intended to aid
interpretation in this matter. Apart from testifying in order to prove claim 2 of Sbahle, the
evidence also provided the relevant background and context of the agreement and the
working relationship between Sbahle and PRASA in the project.

[25] An argument was advanced on behalf of PRASA that each agreement set out a
contractual price agreed upon between the parties. The prices were set out in the
respective agreements. The submission continued thus:
‘In terms thereof the parties agreed that for fire consultancy services the respondent would be
paid a sum of R796 185.72 exclusive of vat. For health and safety services the respondent
would be paid an amount of equivalent to 5% of the project value (this turned out to be the sum
of R5 897 462.50 exclusive of vat) for the whole project.’
According to PRASA the abovementioned amounts were fixed and in the event of the
project increasing in value, the services were to be free and in the event of a decrease
in value the amount payable would be calculated on the decreased value. Effectively,
PRASA’s argument means there would never be an increase to the amounts agreed to.
The other submission put forth by PRASA which must be dealt with in this judgment is
the following:

‘Our submission is that the extension of time in the construction industry does not amount to a
change in the scope of work, let alone material additional services . . . there were no written
instructions to the respondents to incur any costs in regard to the project.’
PRASA’s contention is that there was an aborted attempt to reach an agreement made
on 24 January 2012 when Sbahle suggested that for the period June 2010 to January
2012, it was owed R6 591 281.64 for health and safety consultancy and R889 854.55
for the fire consultancy inclusive of VAT. PRASA stated that it rejected the proposal on
the basis that these amounts were exorbitantly high. However, PRASA made a counter
offer in an amount of R1,5 million in settlement of Sbahle’s claim for R6,5 million in
respect of safety consultancy, which Sbahle rejected. PRASA submits that Sbahle failed
to establish or to prove its case.

[26] The context in which the contract was concluded, the wording of the contract
and, to the extent necessary, the contra proferentem rule, ought to be considered in the
process of interpretation. It is commonplace that the context includes the subsequent
conduct of the parties which would indicate how they understood their contract. See in
this regard Unica Iron and Steel (Pty) Ltd v Mirchandani [2015] ZASCA 150; 2016 (2)
SA 307 (SCA) para 21. It is trite that in order to arrive at the common intention of the
parties, the contract must be interpreted as a whole. See Swart en 'n Ander v Cape
Fabrix (Pty) Ltd 1979 (1) SA 195 (A) at 202C; Bothma–Batho Transport (Edms) Bpk v S
Bothma & Seun Transport (Edms) Bpk [2013] ZASCA 176; 2014 (2) SA 494 (SCA)
para 12.

[27]  It is not wrong to have regard to the background and context in the interpretation
of an agreement. It also does not equate to making a contract for parties. Taking
cognisance of the background and context entails that the document must be read in
context and regard must be had to the purpose and the relevant provisions thereof in
order to ascertain the intention of the parties. See in this regards Endumeni Municipality
supra at 603F-604D; Ekhurhuleni Metropolitan Municipality v Germiston Municipality
Retirement Fund [2009] ZASCA 154; 2010 (2) SA 498 (SCA); North East Finance (Pty)
Ltd v Standard Bank of South Africa Ltd [2013] ZASCA 76; 2013 (5) SA 1 (SCA); The
City of Tshwane Metropolitan Municipality v Blair Atholl Homeowners Association [2018]

ZASCA 176; [2019] 1 All SA 291 (SCA). The reason why the court seeks the common
intention of the parties from the wording of the contract is because that wording as
agreed between them remains mutual to them. If the words speak with sufficient clarity
it must be taken as expressing the parties’ common intention. See Total South Africa
(Pty) Ltd v Bekker NO 1992 (1) SA 617 (A) at 624 G-625B.

[28] In Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA
13; 2012 (4) SA 593 (SCA) at 603F-604D, this court stated the following regarding the
interpretation of contract, document, legislation or some statutory instrument (para 18):
‘The present state of the law can be expressed as follows. Interpretation is the process of
attributing meaning to the words used in a document, be it legislation, some other statutory
instrument or contract, having regard to the context provided by reading the particular provision
or provisions in the light of the document as a whole and the circumstances attendant upon its
coming into existence. Whatever the nature of the document, consideration must be given to the
language used in the light of the ordinary rules of grammar and syntax; the context in which the
provision appears; the apparent purpose to which it is directed and the material known to those
responsible for its production . . . The “inevitable point of departure is the language of the
provision itself’’, read in context and having regard to the purpose of the provision and the
background to the preparation and productivity of the document.’
The interpretation process is always an objective exercise. Furthermore an approach
leading to an ‘insensible or unbusinesslike result’ or a result undermining the apparent
purpose of the document, must be avoided

[29] The second agreement upon which claim 2 is founded, is contained in the
particulars of claim and the amended plea. The terms of the second agreement relevant
for the purpose of this judgment are the following:
‘2.5 The said consultant will also be required to assist the contractor and the client in drawing up
a comprehensive construction site plan. This plan shall be reported at all the site meetings and
at any other time when required by the client.
3. The client will not entertain any extra fees claims unless he introduces a substantial or
material change to the scope of the project.
. . .

The fee shall, be deemed to be inclusive payment for the services and for all disbursements,
costs, expenses, overheads or profits of every kind incurred or to be earned by the consultants
in connection therewith. If the consultant is required by the client to provide material additional
services by reason of any alterations, project extension or modifications to the project as
required by the client, then the client shall pay to the consultant additional amounts in respect of
the fee, commensurate with the additional services performed by the consultant.’
The ‘Consultant’ is Sbahle and the ‘Client’ refers to PRASA. Sbahle’s claim 2 of
R9 095 968.47 together with interest and costs places reliance on allegations set out
earlier in this judgment. The project was not completed on the anticipated contractual
completion date, 31 May 2010. It was still not complete as at date of summons, but
Sbahle was still rendering services to PRASA. It cannot be denied that the extension of
the project was not necessitated in whole or in part by a negligent act, omission or
default on the part of Sbahle. The agreement provides expressly that if Sbahle is
required by PRASA to provide material additional services, inter alia, by reason of
alterations, project extension or modifications of the project, then PRASA shall pay
Sbahle additional amounts in respect of the fee commensurate with additional services
performed by Sbahle. It remains undisputed that Sbahle rendered the same services up
to and including 31 May 2010 and as from June 2010 to at least August 2013.

[30] The truth is that up to 31 May 2010, Sbahle became entitled to a total contract
fee of R5 897 462.50 excluding VAT over a period of 17 months at a monthly rate of
R346 909.56 exclusive of VAT. Sbahle was not paid as per the contract. Consequently,
it contended that PRASA’s conduct in neglecting or failing to pay for its services
rendered over the period June 2010 to February 2012, amounted to a breach of the
terms of the agreement between them. This contention cannot be faulted. PRASA’s
denial that Sbahle was rendering a service to it, is beyond my comprehension.
According to PRASA’s plea, Sbahle only rendered such services beyond 31 May 2010
by virtue of an extended period up to 28 February 2012. What is surprising is that
PRASA appears to adopt the attitude that Sbahle was required to render a service free
of charge for a period of approximately 19 months.

[31] In addition, it must be borne in mind that Sbahle did not simply continue on its
own to render services beyond 31 May 2010. According to Mr Khuzwayo’s undisputed
testimony, the issue was raised with PRASA’s manager. Mr Khuzwayo approached the
manager and asked him pertinently as follows:
‘My time is about to be finished what are we doing? Are we packing and going or what?’
It is common cause that PRASA’s manager said ‘nobody is leaving here. Go back to
your contract, read your contract’. When Mr Khuzwayo responded and said ‘. . . it is
telling me that my time is going to be over on 31 May 2010’, the manager referred Mr
Khuzwayo to the relevant clause saying ‘that contract does allow for an extension’. It is
Mr Khuzwayo’s undisputed evidence as summarised above that he then enquired about
the extra work. Mr Khuzwayo was told by Mr Sindane (the project manager for PRASA
at the time) that the contract covers everything and Mr Sindane reportedly read the very
same clause to Mr Khuzwayo.

[32] It is not without significance that PRASA called no witnesses and presented no
version in opposition to the version presented by Mr Khuzwayo. Strangely, no further
evidence was led and no version was put to Mr Khuzwayo in respect of PRASA’s
pleaded version that the parties agreed to extend the contractual period from
31 May 2010 to August 2013 subject to the original contract price remaining the same.
In my view, based on common cause facts, the pleadings and Mr Khuzwayo’s
uncontested evidence, Sbahle was entitled to be remunerated for the services rendered
after 31 May 2010 as expressly provided for in the first and second agreements.
Undoubtedly, additional services were required by PRASA and they were rendered by
Sbahle for a substantially extended period of time.

[33] In my view, the ordinary grammatical meaning of the contract provision relevant
to the matter at hand is clear and unambiguous. The aforementioned is underpinned by
the context in which the words are used. The truth is that Sbahle rendered time-based
services. Such services were required to be rendered by Sbahle as long as the project
was ongoing. The agreements provided a mechanism in terms whereof Sbahle would
be remunerated if the project was extended for a substantial period of time. Indeed
‘material additional services’ must be interpreted within the aforementioned context. It is

not conceivable that PRASA would expect Sbahle to render services free of charge
from June 2010 to at least August 2013. That is a period of approximately 2 years. Jaga
v Dönges NO & another, Bhana v Dönges NO & another 1950 (4) SA 653 (A) at 602H
and Sassoon Confirming and Acceptance Co supra at 646C are authorities for the
proposition that context relates to context within the contract as well as the wider
context relating to background evidence. Mr Khuzwayo testified to all the necessary
background evidence.

[34] I have set out above the clause dealing with fees. Of importance is the portion
that reads:
‘If the consultant is required by the client to provide material additional services by reason of any
alterations, project extension or modifications to the project as required by the client, then the
client shall pay the consultant additional amount in respect of the fee, commensurate with the
additional services performed by the consultant.’

[35] Mr Khuzwayo’s undisputed evidence is that PRASA changed the scope of the
project in the manner fully set out in the evidence summarised above. There were
additional stalls and PRASA offices etc that had to be built; there were additional ticket
offices to be built as well. Any interpretation that says all this did not amount to
additional services brought about by reason of alterations, project extension or
modifications to the project required by PRASA, would militate against the reality.
Significantly, PRASA does not deny that it required all these additional alterations,
project extensions or modifications. The truth is that all of the above certainly
necessitated extra services to be rendered by Sbahle. It also caused or contributed
largely to the project not being completed by 31 May 2010 as originally scheduled. It is
clear that the extent of the extra work or alterations was not at all necessitated ‘in whole
or in part’ by any negligent act, omission or default on the part of Sbahle. The fact is that
if this was as a result of Sbahle’s fault, negligence or omission, then clearly in terms of
this clause PRASA would be absolved from paying Sbahle additional amount in respect
of the fees. At the risk of repetition, the words used in the second agreement are clear
and from them the intention of the parties is ascertainable. I am unable to agree with
PRASA’s contention that whereas the project was intended to be completed by

31 May 2010 any further extension of time with a view to complete it, did not bring about
the change of the contract price in respect of the health and safety consultancy. This
fails to take account of all additional additions, alterations or modifications to the project
brought about by PRASA. The change in the fee structure is provided for in the
agreement as set out above. This cannot be ignored.

[36] The question of fees owed to Sbahle did not simply arise when summons was
issued and served on PRASA. The parties were aware about the additional fees due to
Sbahle. On 24 January 2012, Sbahle wrote to PRASA and set out fees owed to it.
I quote hereunder the last portion of that letter:
‘Fees owed from June 2010 to January 2012 = R6591 281.64 for consultation period 19
months, from June 2010 to January 2012 = R889 854.55 for fire consultation period 19 months.
The above calculated fees are for the extra work done after the expiring date for the contract
(May 2010) and they exclude 7% increase for the project extension of time. All fees are vat
exclusive. We trust that the above is in order and should there be any need for clarification,
please contact myself.’
The letter was signed on behalf of Sbahle by David Khuzwayo. I mention that at that
stage PRASA accepted that there had been extension of the project and that extra work
was done even after the expiry of the contemplated date of completion of the project.
PRASA did not dispute or deny that it changed the scope of the project by introducing
alterations, additions and modifications to the project. PRASA accepted that it owed
money to Sbahle. The dispute was only about how much exactly was owing. This
comes out clearly from PRASA’s response to Sbahle’s letter dated 24 January 2012.
PRASA, instead of contending as it now does that no fees were due and owing to
Sbahle, accepted it owed Sbahle, but was merely concerned about the amount.
Consequently, it made a counter offer to rather pay Sbahle an amount of R1.5 Million as
a settlement instead of what was claimed. PRASA’s letter dated 28 March 2012.
Paragraph 2 thereof reads as follows:
‘After studying the request for proposal fee review, in line with the numerous extension of time
granted to the contractor as a result of circumstances beyond the contractor’s control, I hereby
recommend that the professional team be compensated as follows:
1.
Project Management Services R2.5Million

2.
POS. Mahiatsi Tumelo R2.7Million
3.
Structural and Civil Engineers: MEC (including re design work) R1.5Million.
4.
Electrical Engineers R1.2Million
. . .
Health and Safety Consultants: Sbahle fee is exorbitantly high and not market related –1.5
Million is proposed instead of the R6.5Million being claimed. It is evident that the professional
team is currently discouraged since the period of the project extended beyond their anticipated
completion dates and that they have depleted the resources for this project. We confirm that no
more extensions of fees will be entertained and that all will be held responsible for
performance.’ (My emphasis.)

[37] The stance adopted by PRASA at the hearing of this matter before the high court
and on appeal is new. This new stance now says in effect ‘yes there was an extension
of completion time, yes there was additional work necessitated by alterations,
modifications and additional extra stalls to be built, new and additional offices to be built
and additional ticket offices to built etc but Sbahle will not or is not entitled to be paid
any sum of money apart from what was paid up to and including 31 May 2010’. In other
words, despite an extension of the time period within which the project was scheduled
to be finalised and despite what necessitated the extension, there shall be no payment
to Sbahle. I ask rhetorically, why? The contract is clear on this. Sbahle must be
compensated with an amount in respect of fees commensurate with the additional
services performed. Any argument to the effect that Sbahle must have been instructed
in writing has no substance at all. Apart from the fact that this was never even pleaded,
it was not even raised in argument nor even referred to in the judgment of the high
court. In my view, it is advanced for no reason other than as a last-ditch attempt to
deprive Sbahle of what has been proved to be due to it.

[38] I have mentioned above that by accepting the version presented by
Mr Khuzwayo, the high court effectively found him to be a credible witness whose
evidence could be   relied upon. PRASA omitted to present any evidence in rebuttal. It
is trite that an appeal court must be reluctant to disturb findings of character by a trial
Judge, who was steeped in the atmosphere of a trial and had the advantage of seeing

and hearing the witness. Such findings are only overturned if there is a clear
misdirection or the trial court’s findings are clearly erroneous. See R v Dhlumayo and
Another 1948 (2) SA 677 (A) at 705-706; S v Francis 1991 (1) SACR 198 (A) at 204C-E.
The above approach has consistently been followed by this Court and the Constitutional
Court. In S T v CT [2018] ZASCA 73; 2018 (5) SA 479 (SCA) para 26, this Court stated
the following:
‘In Makate v Vodacom (Pty) Ltd the Constitutional Court, in reaffirming the trite principles
outlined in Dhlumayo, quoted the following dictum of Lord Wright in Powell & Wife v Streatham
Nursing Home:
“Not to have seen the witnesses puts appellate judges in a permanent position of disadvantage
as against the trial judges, and unless it can be shown that he has failed to use or has palpably
misused his advantage, the higher court ought not to take the responsibility of reversing
conclusions so arrived at, merely on the result of their own comparisons and criticisms of the
witnesses and of their own view of the probabilities of the case”.’ (Citation omitted.)
I have no reason to disturb the findings of the high court. In the circumstances, the
appeal falls to be dismissed.

[39] For the aforesaid reasons, I would have dismissed the appeal with costs,
including costs occasioned by the employment of two counsel.

____________________
DV DLODLO
JUDGE OF APPEAL

Mabindla-Boqwana AJA (Petse DP and Mocumie JA concurring):
Introduction
[40] I have read the judgment of my brother Dlodlo JA. For the reasons set out below,
I find myself unable to agree with his decision in regard to the outcome of this appeal. In
my view, the appeal in respect of Sbahle’s second claim should succeed with costs.

However, I agree that the appeal in regard to the claim in reconvention must fail. Such a
claim was correctly dismissed by the court a quo.

[41] The issue which arises for determination in the appeal before us is whether
PRASA breached the contract it entered into with Sbahle in respect of the safety
consultancy services and is consequently liable for the amount claimed by Sbahle.

[42] To answer this question one must look at the terms of the agreement, and, in
particular, whether those terms were satisfied for the purposes of the claim. Sbahle
contends that by virtue of the project not having been completed on 31 May 2010 and
extended to May 2012 (although in evidence Mr Khuzwayo alleged that the claim was
up to November 2012 when the main contractor left the site), it was entitled to payment
in respect of the additional months as it continued to render the same services to
PRASA for such additional months. It based its claim on the clause in the contract which
stated that if PRASA required it to provide additional material services, PRASA would
be liable to pay additional amounts proportionate to the additional services performed.

[43] For its part, PRASA contended that not only were additional services not
required, they were not performed as borne out by the pleadings and Mr Khuzwayo’s
evidence, and that the agreed extension of time (up to 28 February 2012) was merely
given in order to enable Sbahle and the main contractor to complete their work for which
they were fully paid (something not to be confused with increasing the scope of work) in
accordance with the terms of the parties’ contract.

[44] Accordingly, it is necessary at the outset to put matters in proper perspective by
reiterating two aspects that bear on what is central to this appeal. First, the fate of this
appeal hinges on the interpretation of the agreement upon which Sbahle relies for its
claim. Thus, it is trite that its interpretation, as is the case with any document, is a matter
for the court and not a witness who testifies in regard to the content of the document.
Secondly, the fact that PRASA called no witnesses is not relevant insofar as the
interpretation of the parties’ contract is concerned whose terms were after all common
cause between the parties.

[45] The issue will be better understood against the brief facts which I find necessary
to highlight, in view of the variances on certain aspects between Dlodlo JA and myself.
Save to that limited extent, I agree with the background and evidence as expounded by
Dlodlo JA in his judgment. I accordingly will not repeat same.

[46] On 18 December 2018, PRASA entered into two separate written agreements
with Sbahle. In respect of the first agreement, Sbahle would provide fire consultancy
services for the Mabopane Bridge Redevelopment project (the project). The total fee for
this agreement was R796 185.72. This agreement formed the basis of claim 1 in the
particulars of claim which Sbahle no longer persisted with, as it was found to have been
fully compensated as part of the payment in the amount of R2 034 938.19 made by
PRASA to it on 15 October 2013. A letter embodying the terms of the first agreement
was attached to the particulars of claim.

[47] As to the second agreement, which is the subject of this appeal, Sbahle was
appointed as safety consultants in respect of the same project. This agreement formed
the basis of claim 2 wherein an amount of R9 095 968.47 was claimed. Interestingly,
Sbahle did not annex the full agreement in this respect to its particulars of claim. The
complete copy of the second agreement with terms material to the determination of this
claim, only emerged as an annexure to the plea and counterclaim. The total fee for this
agreement would be 5 percent of the project which equated to R5 897 462.50. The
terms contained in the complete copy of the agreement are crucial as it shall become
clearer shortly. Both agreements were effective from 2 January 2009 to 31 May 2010.
The averments in relation to both agreements in the particulars of claim are almost
identical. As mentioned by my colleague, Sbahle obtained judgment in the court a quo
in its favour in relation to claim 2.

Analysis
[48] The principles applicable to interpreting an agreement are trite. I will therefore not
repeat them save to mention that, the point of departure is the language in the
document read in context and taking into account the purpose of the provision and the

background to the preparation and production of the document.1 In addition, the clauses
in the agreement must not be read in isolation; the agreement must be taken as a
whole.

[49] The material terms and conditions (in the second agreement) central to the
dispute between the parties were that:
‘…
3. The Client will not entertain any extra fee claims unless he introduces a substantial or
material change to the scope of the Project.
4. The fee shall be paid in accordance with the agreed fee as per Annexure “A”
…
8. The client will not be liable for any costs incurred by yourselves through whatsoever cause
except where the Client has specifically instructed you in writing to incur same. All fee claims
applicable for the undertaking of this work are to be addressed with Intersite Property
Management Services (Pty) Ltd.
…
FEES
The Client shall pay to the Consultant as full remuneration for the performance by the
Consultant of the Services in accordance with this Agreement.

The Fee shall, be deemed to be inclusive payment for the Services and for all
disbursements, costs, expenses, overheads or profits of every kind incurred or to be earned
by the Consultant in connection therewith.
If the Consultant is required by the Client to provide material additional Services by reason of
any alterations, project extension or modifications to the Project as required by the Client,
then the Client shall pay to the Consultant additional amount in respect of the Fee,
commensurate with the additional services performed by the Consultant.

However, should the extent of extra work or alterations that the same shall have been
necessitated in whole or in part, by any negligent act, omission or default on the part of the
Consultant, the Client will not pay to the consultant additional amount in respect to the fee

1 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262
(SCA); 2012 (4) SA 593 (SCA) para 18.

The total fee for Consultant’s services on the above project is based on Annexure ‘A’.

ANNEXURE A

Service                                                     : Safety Consultant
Total Fee (excl. VAT): 5% of the Project
Costs. Effective date is 2nd January 2009 until
Contractual Completion date: 31 May 2010.

Should the estimated project value decrease the tariff of 5% of the project costs will be
applied on final value and should the estimated project value increase the services will be
free until the completion of the project, 31 May 2010.

The fees initially will be fixed based on the costs of works as agreed to by the client in terms
of the aforementioned principle.’ (Emphasis added.)

[50] In order for a breach of contract to have been established, Sbahle would have
had to show: (i) that PRASA introduced a substantial or material change to the scope of
the project in terms of clause 3; (ii) that PRASA had instructed it in writing to incur such
costs claimed as required in clause 8; and (iii) that PRASA required it to provide
material additional services as per the fees section of the contract and that the fee
claimed was commensurate with the material additional services. (Emphasis added.)
The terms of the agreement are clear and unambiguous. Such terms or requirements
must be assessed as against the pleadings and the evidence.

[51] It is common cause that Sbahle only pleaded that it rendered the ‘same services
as it rendered up to and including 31 May 2010.’  It did not plead: (a) that it was required
to perform material additional services by PRASA (b) the nature and scope of those
services, (c) that it performed those additional services, and (d) that the additional
amount claimed is commensurate with the services performed, ie material additional
services.

[52] The only relevant evidence led by Mr Khuzwayo was that the project
encountered a number of problems which caused a delay. These included demands

made by the community who wanted to dictate their own terms to the main contractor;
the land owner who did not want the bridge to land on his property; requests made by
PRASA for further developments, namely, construction of a derailment wall, extra stalls
on the western side of the bridge as well as offices to be built underneath the bridge.
Because of these changes, so went Mr Khuzwayo’s evidence, the architect had to
change the design of the project, which also meant the rest of the project team
(including Sbahle) had to come up with a new design to fit the new architectural
concept.

[53] The first problem that arises from Mr Khuzwayo’s testimony is that the alleged
additional work he recounted related only to the work that had to be performed by the
main contractor, he failed to specify the material additional services that Sbahle was
required to perform. All he could say was that Sbahle had to be with, monitor and
supervise the main contractor to ensure that it complied with health and safety
standards at all times during the project. Mr Khuzwayo was asked by PRASA’s counsel
during the trial to produce the original design, the letter with instructions from PRASA to
redesign and the changed design, so as to ascertain the nature and the extent of
change in scope of the original work. He failed to do so.

[54] The redesign would, in any event, obviously have been done prior to 31 May
2010. Sbahle’s claim is for work done beyond that period. It is also not clear whether
such redesign pertained to the fire consultancy or safety consultancy services.

[55] The second problem is that Mr Khuzwayo was not able to point to any specific
instruction given in writing to incur additional costs as required in clause 8 of the second
agreement. This is an important pre-condition for PRASA’s liability.  All Mr Khuzwayo
could say was that when the time for the project was about to expire, he raised the
issue with PRASA’s manager in the following terms: ‘My time is about to be finished.
What are we doing? Are we packing and going or what?’ The manager said in
response: ‘Nobody is leaving here. Go back to your contract. Read your contract’
According to Mr Khuzwayo he then said to the manager: ‘I know. It is telling me that my

time is going to be over on 31 May 2010.’ The manager then replied: ‘That contract
does allow for an extension.’

[56] Beyond this conversation it is clear that no written instruction was given to
Sbahle to incur costs as required in clause 8. Counsel for Sbahle submitted that clause
8 refers to ‘costs’ as opposed to ‘fees’ and the pre-condition relating to written
instructions only pertained to ‘disbursements’ or ‘expenses’ incurred by Sbahle and not
fees. This argument is contradicted by what is contained in the unnumbered second
paragraph under the heading ‘FEES’. In this paragraph it is clearly stated that ‘[t]he Fee
shall, be deemed to be inclusive [of] payment for the Services and for all disbursements,
costs, expenses, overheads or profits of every kind incurred or to be earned by the
Consultant in connection therewith.’ (Emphasis added.)

[57] Sbahle regrettably cannot get past the requirements in clause 8 of the
agreement. Clearly, in terms of this clause it should have procured written instructions
before incurring any costs for ‘additional services’. Instructively, the conversation with
the manager does not refer to change in scope of work or provision of material
additional services. All it refers to is the extension which the manager stated was
‘allowed’ by the contract, which seems to be consistent with what is alleged in the
particulars of claim that during the extended period Sbahle rendered the ‘same services
as it rendered up to and including 31 May 2010’.

[58] I note my colleague’s reference to Mr Khuzwayo’s evidence in relation to ‘extra
work’ that needed to be performed. The issue, however, is whether Sbahle was
instructed in writing by PRASA to render additional ‘material’ services, and if so whether
the amount claimed is commensurate with such additional work, as mentioned above.
Mr Khuzwayo’s evidence did not satisfy these requirements. It is also telling that he
could not produce the new designs he supposedly prepared along with the other
requested documents.

[59] An intriguing point, overlooked by the court a quo, is that the additional services
performed had to be ‘material’. It was, accordingly, not sufficient for Mr Khuzwayo to

merely mention that Sbahle performed ‘extra work’. In my view, over and above
specifying the additional work that Sbahle was required and instructed to perform in
writing (which he failed to do), Mr Khuzwayo had to demonstrate that such work was
‘material’. Had this critical fact been established, Sbahle would, in addition, bear the
onus to demonstrate that the amount claimed was commensurate with the additional
services rendered. On a conspectus of the evidence, Sbahle came nowhere near to
establishing any one of these crucial facts. Sbahle’s failure to do so must ineluctably
lead to the conclusion that the case against PRASA was not proved.

[60] Sbahle referred to an internal memorandum of PRASA dated 12 March 2012,
which recommended that an amount of R1,5 million be paid to Sbahle instead of the
R6,5 million it claimed. Apart from the fact that the memorandum is an internal
document, it does not record any agreement nor can it be equated to an
acknowledgement of an agreement or written instructions for Sbahle to incur costs for
additional services. It simply recommends compensation to be paid to the professional
team (including Sbahle) for the extension of time. It does not refer to compensation for
material change in scope of work or additional services. On a fair reading thereof, the
memorandum amounts to no more than PRASA’s attempt to resolve a dispute that had
arisen between the parties amicably.

[61] A brief comment to illustrate the difference between the two scenarios will suffice.
It seems to me that the second agreement countenanced a situation where the client
would introduce substantial or material change to the scope of the project within the
duration of the agreement. The extension of the scope of the agreement may not
necessarily result in the extension of time. Time may also be extended for the same
services to be rendered within an extended period. Mr Khuzwayo seemed to conflate
the two scenarios. Delays in themselves do not necessarily amount to additional work.

[62] The contract in this case stated that the client would be liable for an additional
amount when it introduced ‘substantial’ change in scope of work. Furthermore, payment
of any additional amount incurred would have had to be measured with the additional
work done to determine if it was commensurate with such work. It seems to me, the

agreement made a special provision for payment of fees in relation to additional
services. This is because in respect of the total fee of the project the agreement
expressly provides that such will be based on Annexure ‘A’. In contrast, when it came to
additional work, such work had to be costed to determine whether it was commensurate
with the additional services performed by Sbahle. It is clear therefore that a special fee
dispensation was envisaged in respect of additional work.

[63] Notably, the project commenced some seven months later than it was scheduled.
Mr Khuzwayo confirmed that it was 53 percent complete when Sbahle left the site.
Notwithstanding that, the full contractual amount was paid. The formula employed in
Annexure ‘A’ was based on the contract being completed on the specific date of 31 May
2010. The unsuccessful attempt to negotiate a further fee in relation to the safety
consultancy services is, in my view, indicative of the fact that any amount above the
fees agreed to in the contract would have had to be a subject of negotiations. It was not
covered by the agreement as it stood.

[64] In sum, the contract is clear that PRASA would only be liable for an extra fee if, it
introduced significant or material changes to the scope of work, instructed Sbahle in
writing to incur costs for such additional work and payment of the additional amount
would be commensurate with the work done. Not only was compliance with these pre-
conditions not pleaded, no evidence was led in this regard. To underscore this point, it
bears emphasising that the basis of PRASA’s case is not new, its defence has always
been founded on the fact that PRASA at no stage instructed or required Sbahle in
writing to undertake material additional services. This issue and the relevant clauses
were pertinently raised by PRASA’s counsel in the course of Mr Khuzwayo’s cross-
examination.

[65] Sbahle, therefore, failed to discharge its onus. The court a quo erred in finding
that it did. For those reasons, I am of the view that to this extent the appeal should
succeed. So far as costs are concerned, I am satisfied that PRASA is entitled to its
costs as it has achieved substantial success on appeal.

[66] It remains to address one final issue. Counsel for Sbahle submitted that it would
be iniquitous for Sbahle to perform work for many months to PRASA’s benefit without
being paid for its services. The finding in this judgment does not suggest that Sbahle
should not be compensated for its services, if any. It may be that it has a remedy, but
such remedy does not lie under the second agreement it relied upon in its action. It
possibly can have a competent claim on a different cause of action. However, for
present purposes Sbahle based its claim on contract, consequently, the facts pleaded
and the evidence led had to be construed in light of the parameters of the said contract.

[67] For the aforegoing reasons, the following order is made:
1 The appeal in relation to the second claim succeeds with costs, including costs
consequent upon the employment of two counsel.
2 The appeal in relation to the claim in reconvention is dismissed.
3 The order of the court a quo is set aside to the extent reflected below and substituted
with the following:
‘The action in respect of the second claim is dismissed with costs.’

_________________________
N P MABINDLA-BOQWANA

ACTING JUDGE OF APPEAL

APPEARANCES:

For appellant:

M Gwala SC (with him M Machete)
Instructed by:

Ngeno and Mteto Incorporated, Pretoria

Kramer Weihman & Joubert Attorneys, Bloemfontein

For Respondent:

C da Silva SC (with him D Prinsloo)
Instructed by:

Ndumiso Voyi Incorporated, Port Elizabeth
Webbers Attorneys, Bloemfontein