(Not important) CASE NO.: I 1102/2008

IN THE HIGH COURT OF NAMIBIA

In the matter between:

LIKILIKILE CONSTRUCTION AND RENOVATION CC PLAINTIFF

and

RUNDU TOWN COUNCIL DEFENDANT

CORAM: MANYARARA, A J

Heard on: 23 - 24 June 2009; 11 August 2009

Delivered on: 11 August 2009

Reasons given: 21 September 2009

JUDGMENT

MANYARARA, AJ: [1] The facts of this matter are common cause and may be summarized as follows:

The plaintiff is a close corporation represented herein by Mr Daniel Mukisi, its major shareholder. The defendant is a statutory body established in terms of the Local Authorities Act, 1992.

[2] On 27 September 2007 the plaintiff was awarded a tender to endure for the period 1 October 2007 to 30 September 2009 for cleaning, picking and removal of litter in the streets, gardens, parks, sanitary lanes and open spaces at the town of Rundu. In terms of the agreement, the defendant was to pay the plaintiff an amount of N$33 408.00 per month for the services so tendered.

[3] In this action, the defendant pleads that the plaintiff breached the contract by not performing its duties to the satisfaction of the defendant in terms of the contract, in consequence whereof the defendant cancelled the contract with effect from 8 April 2008.

[4] The plaintiff did not accept the cancellation and accordingly claimed that it suffered damages in the amount of N$634 752.00, being the monthly payments it would have received for the unexpired portion of the contract period. At the commencement of the hearing, the amount claimed was reduced to N$601 344.00. Mr Nekongo appeared for the plaintiff and Mr Corbett for the defendant.

[5] At the close of the plaintiff’s case, the defendant applied for absolution from the instance with costs, including the costs of one instructing and one instructed counsel, which I granted, with reasons to follow. These are they.

[6] It is trite that a litigant is bound by his pleadings. The burden of proof lay on the plaintiff which pleaded the case it set out to prove as follows:

“9. As a direct result of the defendant’s unlawful cancellation of the contract between the parties, the plaintiff suffered damages in a combined amount of (corrected during evidence to N$601 344.00) that plaintiff ought to have received during the remaining currency of the contract as an income.

10. In the premises, the defendant is liable on account of unlawful cancellation of the contract for damages suffered by the plaintiff in the amount of N$601 344.00.”

[7] It was in proof of the claim as pleaded above that, in the evidence he led, Mukisi produced and handed in a document prepared by or on the plaintiff’s behalf (Exhibit “F”) and testified that the document set out the budget upon which the plaintiff tendered for the amount of N$33 408.00 per month as follows:

[8] Mukisi set out set out the plaintiff’s monthly expenses in performance of the contact as follows:

1. Wages x 23 workers at N$450.00 = N$10 350.00.

2. Driver N$1000.00

3. Secretary N$500.00

Total cost including

social security contributions N$12 830.00

4. Purchase of truck N$7 229.00

5. Vehicle maintenance, repairs etc N$6 000.00

6. Fuel N$6 000.00

In respect of clothing, the plaintiff paid the following amounts per worker:

• Overalls N$100.00

• Boots N$250.00

• Gloves N$13.00

Total N$1 089.00 per month

[9] According to Mukisi, telephone and cellphone use etc brought the plaintiff’s monthly expenses to the sum of N$33 659.00. This amount is N$251.00 per month less than the tender amount of N$33 408.00 per month which the plaintiff

accepted.

[10] Mukisi was the only witness called and, after his testimony, the plaintiff closed its case.

[11] It will be evident that as surely as night follows day, on Mukisi’s own evidence, the plaintiff underestimated the amount expected to be received in terms of the contract by an amount of N$251.00 per month and the underestimation would have resulted in a loss rather than a profit to the plaintiff of N$251.00 x 18 months for the remaining period on the contract. In fairness, the point was not disputed.

[12] However, if I understood Mr Nekongo’s contention (and I believe that I did), it was that loss of profit was irrelevant to the plaintiff’s claim: the issue was whether the defendant breached the contract by cancelling the tender before the expiry of its duration and, if so, the proper assessment of damages should be the income which the plaintiff would have earned had the contract been allowed to run its full term.

[13] The proposition has no basis in law and, understandably, Mr Nekongo was unable to cite any authority for the proposition because there is none.

[14] As Mr Corbett submitted, the plaintiff set itself the task of proving that the plaintiff suffered damages as a consequence of the cancellation of the contract by the defendant. On the contrary, on Mukisi’s own version, the plaintiff suffered no damages by reason of the cancellation of the contract.

[15] The law on absolution is adequately set out by Herbstein & Van Winsen: The Civil Practice of the High Courts of South Africa Fifth Edition by Andries Charl Cilliers, Cheryl Loots and Hendrik Christofel Nel SC. The learned authors cite with approval the principles enunciated by Harms JA in Gordon Lloyd Page & Associates v Rivera and Another 2001(1) SA 88 (SCA) as follows:

“The test for absolution to be applied by a trial court at the end of a plaintiff’s case was formulated in Claude Neon Lights (SA) Ltd vs Daniel 1976 (4) SA 403 (A) at 409G-H in these terms:

‘…(When) absolution from the instance is sought at the close of plaintiff’s case, the test to be applied is not whether the evidence led by plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff. (Gascoyne v Paul and Hunter 1917 TPD 170 at 173; Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958 (4) SA 307 (T).’

This implies that a plaintiff has to make out a prima facie case – in the sense that there is evidence relating to all the elements of the claim­­­–to survive absolution because without such evidence no court could find for the plaintiff (Marine & Trade Insurance Co Ltd v Van der Schyff 1972 (1) SA 26 (A) at 37G-38A; Schmidt Bewysreg 4th ed at 91-92). As far as inferences from the evidence are concerned, the inference relied upon by the plaintiff must be a reasonable one, not the only reasonable one (Schmidt at 93). The test has from time to time been formulated in different terms, especially it has been said that the court must consider whether there is evidence upon which a reasonable man might find for the plaintiff’ (Gascoyne (loc cit)) – a test which had its origin in jury trials when the ‘reasonable man’ was a reasonable member of the jury (Ruto Flour Mills). Such a formulation tends to cloud the issue. The court ought not to be concerned with what someone else might think; it should rather be concerned with its own judgment and not that of another ‘reasonable’ person or court. Having said this, absolution at the end of a plaintiff’s case, in the ordinary course of events, will nevertheless be granted sparingly but when the occasion arises, a court should order it in the interests of justice.”

[16] Accordingly, applying the Gascoyne principle, upon the defendant’s absolution application at the end of Mukisi’s evidence, there was no evidence upon which the Court could find that the plaintiff suffered the damages claimed as none had been proved. See also Lofty-Eaton v Gray Security Services Namibia (Pty) Ltd 2005 NR

297 (Hc), R v Shein 1925 AD 6 at 9 and Swanee’s Boerdery (Edms) Bpk (in liq) v Trust Bank of Africa 1986 (2) SA 850 (A) at 862F.

[17] As Mr Corbett submitted, quite correctly in my view –

“12. The plaintiff stated in its evidence that the measure of his damages was the amount the plaintiff would have received from the defendant had the contract not been cancelled. This constitutes a fundamental misunderstanding on the part of plaintiff of the nature of the damages suffered. The plaintiff’s damages can only be its loss of profit. It cannot be entitled to the full amount payable since it no longer has the expenses attached to the performance of the contract.

13. The measure of the plaintiff’s damages is accordingly based upon breach of contract and it is thus entitled to its positive interesse, i.e. to be placed in the same position which it would have occupied had there been no cancellation of the contract (Christie, The Law of Contract in South Africa 5^th Ed. Lexis Nexis, (2006), ps. 543-544, Visser, Law of Damages, Juta (1993), p.72).”

[18] It followed that the plaintiff failed to discharge the onus resting upon it and the defendant was entitled to apply for absolution from the instance, which the court could not refuse.

__________________

MANYARARA, J.

ON BEHALF OF THE PLAINTIFF Mr T M Nekongo

Instructed by: Sisa Namandje & Company Inc.

ON BEHALF OF THE DEFENDANT Adv. A Corbett

Instructed by: Dr Weder, Kauta & Hoveka Inc.