Court name
Supreme Court
Case number
SA 22 of 2002
Title

Queiroz t/a Steel Construction and Maintenance Repair v Namibbeton (Pty) Ltd (SA 22 of 2002) [2006] NASC 3 (21 April 2006);

Media neutral citation
[2006] NASC 3



















REPORTABLE





CASE
NO.: SA 22/2004













IN
THE SUPREME COURT OF NAMIBIA


IN
THE MATTER BETWEEN:













ANTERO
DA CUNHA QUEIROZ t/a STEEL CONSTRUCTION AND MAINTENANCE REPAIR



APPELLANT














AND





NAMIBBETON
(PTY) LTD



RESPONDENT






CORAM:
Shivute, C.J., O’Linn A.J.A. et Chomba, A.J.A.


HEARD
ON : 06/10/2005



DELIVERED
ON: 21/04/2006











APPEAL
JUDGMENT





CHOMBA,
A.J.A
:
This appeal emanates from the judgment of Hannah, J,
who in the court below adjudged that the appellant herein, Antero Da
Cunha Queiroz, was liable personally to satisfy the reliefs claimed
by the respondent, Namibbeton (Pty) Ltd. These two parties were the
defendant and plaintiff respectively in the court a quo.
In this judgment I shall, as a matter of convenience, refer to
Namibbeton (Pty) as the plaintiff or plaintiff company, and to Antero
Da Cunha Queiroz as the defendant.





Before
summarizing the facts whereupon the said adjudication was premised,
it is convenient, at this stage, to reproduce the parties’
pleadings pertinent to the issues which I propose to consider and
resolve in this appeal.





In
the particulars of claim the plaintiff pleaded, inter alia, as
follows:






Para.
3. During or about the middle of 2001 and at Rundu, the plaintiff –
being duly represented by D.C. Badenhorst and/or I.A. Maraun – and
the defendant entered into a partly written and partly oral
agreement. The relevant written portion of the agreement is annexed
hereto as annexure “A “. The following were express,
alternatively implied in the further alternative tacit terms of the
aforesaid agreement:









    1. The
      defendant appointed plaintiff to repair and/or construct for and on
      behalf of the defendant a certain section of road of some 118 km in
      Angola and to render certain related services to and in respect
      thereof as more fully appears from annexure “A” hereto (“the
      work”)’











    1. The
      remuneration payable by the defendant to the plaintiff with regards
      to the performance of the work set out in paragraph 3.1 supra
      amounted to N$24,000.00 per kilometer of the road completed;











    1. The
      aforesaid amount was payable by the defendant to the plaintiff in
      four equal instalments of which the first instalment was payable
      immediately, whereas the second instalment was payable after the
      completion of the first quarter of the extent of the work, the
      third instalment after completion of one half of the extent of the
      work and the fourth instalment after completion of three quarters
      of the extent of the work;










  1. After
    the conclusion of the said agreement and during 2001 the aforesaid
    agreement was orally amended to the extent that the plaintiff would
    only repair and/or construct 75km of the aforesaid road (further
    subject to the same terms as set out in paragraphs 3.1 to 3.3
    above).









  1. The
    plaintiff duly complied with its obligations in terms of the
    aforesaid agreement (as amended) on 8 December 2001 to the extent
    that it is entitled to payment to and in respect of 74km of the road
    completed under the aforesaid agreement.









  1. In
    the alternative to paragraph 5, supra, and in the event of it
    being found that the plaintiff did not fully comply with its
    obligations in terms of the aforesaid agreement, plaintiff avers
    that:










    1. plaintiff
      substantially complied with its obligations in terms of the
      aforesaid agreement by completing in excess of 74 km of the
      aforesaid 75 km of road by 8 December 2001;











    1. defendant
      accepted the aforesaid 74 km of the road completed by the
      plaintiff;











    1. the
      completion of the remaining extent of the road (which is less
      than a kilometer), was rendered objectively impossible and/or it
      was dangerous or unsafe to complete same due to landmines being
      situated over the aforesaid stretch of less than a kilometer;











    1. as
      of 8 December 2001, plaintiff (sic) still owed the defendant
      (sic) an amount of N$506,000.00 which was in breach of
      paragraph 3.3 (read with paragraph 4) of the agreement between the
      parties;











    1. by
      virtue of all, alternatively one or more of the facts and
      circumstances set out in paragraphs 6.1 and 6.4, plaintiff could
      not have been reasonably expected to complete the remainder of the
      road of less than a kilometer and therefore is entitled to payment
      for the 74 km of the road completed by plaintiff.”











In
his plea the defendant’s response to the foregoing were pertinently
as follows:







2 AD PARAGRAPH 2 THEREOF









    1. The
      allegations herein contained are denied as if specifically
      traversed and the plaintiff is put to proof thereof;











    1. The
      defendant pleads that he was at all times relevant hereto acting as
      agent for and on behalf of the Government of the Republic of Angola
      and that such fact was at all times relevant hereto disclosed to
      and within the knowledge of the plaintiff;











    1. It
      is consequently pleaded that the defendant is misjoined as a party
      and therefore non-suited as a party to these proceedings;











    1. It
      is furthermore pleaded that the plaintiff should have sued the
      Government of the Republic of Angola and a special Plea of
      non-joinder is also entered herewith.













WHEREFORE
IT IS PRAYED THAT THE PLAINTIFF’ S CLAIM BE DISMISSED WITH COSTS











PLEA
ON MERITS







AD
PARAGRAPH 3 THEREOF







The
allegations herein contained are denied as if specifically traversed
and the plaintiff is put to proof thereof;









    1. The
      defendant repeats paragraphs 2.2 to 2.4 hereinbefore as if
      specifically incorporated and pleaded herein;











    1. Subject
      to what is stated above, the defendant admits the contents of
      annexure “A” and states that payment in respect of annexure “A”
      was to be effected by the Government of the Republic of Angola and
      not by the defendant as alleged.









AD
PARAGRAPH 4 THEREOF









    1. The
      allegations herein contained are denied as if specifically
      traversed and the plaintiff is put to proof thereof











    1. The
      defendant pleads that the plaintiff unilaterally refused to
      continue with the construction and/or repairs to the road.











    1. It
      is consequently pleaded that the plaintiff breached the agreement
      by having refused to continue with construction and/or repairs to
      the road.













AD
PARAGRAPH 5 THEREOF









    1. The
      allegations herein contained are denied as if specifically
      traversed and the plaintiff is put to the proof thereof.











    1. The
      defendant repeats the allegations made in sub-paragraphs 4.2 and
      4.3 hereinbefore.











    1. As
      a result of the plaintiff’ s breach of contract as stated, it is
      pleaded that the plaintiff is not entitled to any payment as
      alleged or at all.









AD
PARAGRAPH 6 THEREOF







6. The
allegations herein contained are denied as if specifically traversed
for the reasons stated above and the plaintiff is put to the proof
thereof.”









Suffice
it to state that the plaintiff requested for further particulars in
order to except or replicate to the defendant’s plea. In providing
the said further particulars the defendant stated, inter alia, as
follows in paragraph 11:







11. Ad subparagraph 2.6 thereof.







The
Government of Angola would have made payment in four equal
instalments of which the first instalment was payable immediately
whereas the second instalment was payable after the completion of the
first quarter of the project. The third instalment would have been
paid after completion of half of the project and the fourth
instalment after completion of the project as a whole.”









SUMMARY
OF THE UNDISPUTED FACTS





The
short facts which were common cause in this matter were the
following. The defendant operated a company styled as Steel
Construction and Maintenance in Rundu. Sometime in the year 2001
that company was doing some construction work in Katuitui. That was
on the Angolan side of the common border between Namibia and Angola.
The defendant hired the plaintiff, a company which also operated in
Rundu, Namibia, to perform some work at Katuitui. The latter work
entailed land clearing or constructing a parking area and also
constructing a road at the border post. That work was done and
payment for it was effected. There then followed another hiring
between the parties. This time the plaintiff company was requested
by the defendant to perform road construction work. In this
connection one of the two directors of the plaintiff company, a Mr.
D.C. Badenhorst (Badenhorst), submitted to the defendant a quotation
in writing as per annexure “A” referred to in the pleadings and
which was produced as an exhibit in the court a quo.
The quotation was couched in the following terms:






Roads
in Angola.







Herewith
our quotation as follows:







The
rate is N$ 24,000.00 per km. This includes for bush clearing on the
first 14 km and thereafter filling in trenches that cross the road
due to water run-off with gravel material. The quantity of trenches
at (+ or -) 3 per km. Any other work for example pipe culverts will
be extra.







All
above is subject to the area being safe and sound without any danger
to people and equipment. If equipment is to be lost due to riot or
warlike acts they will be replaced and be paid under the contract.
Also that we can use the bulldozer at the border post free of charge
if we use our own diesel and operator.







We
hope you find the above in order.”










The
quotation was sent by facsimile dated 11 June 2001. The distance of
road to be constructed and/or repaired was 118 km.





After
acceptance of the quotation the plaintiff commenced construction of
the road. That was towards the end of June or beginning of July
2001. When work was in progress, by oral consensual arrangement, the
initial distance of 118 km was reduced to 75 km while the remainder
was assigned to another contractor.





During
the performance of work on the first 14 km landmines were encountered
on a stretch covering 1 km. In fact some landmines were detonated
and these damaged the bulldozer which was being operated on that
stretch. It had to be repaired. Save for the 1 km aforesaid which
had landmines, the rest of the 14 km was completed. Work proceeded
up to the 75 km point as per the amended contract. The work actually
done covered a distance of 74 km.





As
the agreed charge was N$ 24,000.00 per km, the total charge for the
74 km actually completed was N$ 1,776,000. Out of that the amounts
paid by instalments were the following:






  1. On
    7 September 2001, N$ 420,000


  2. On
    17 October 2001, N$ 420,000


  3. On
    8 December 2001, N$ 430,000







Thereafter
payment stalled until 15 October 2002 when another amount of N$52,400
was paid.





It
is necessary to highlight the fact that the parties were, as
reflected in the pleadings, at one regarding payment of the first
instalment. That was to be made immediately at the execution of the
contract. As it is common cause that the performance of the
contracted work began in June or beginning of July 2001 it stands to
reason that the initial instalment was due either in June or early
July.





FACTS
IN DISPUTE





On
the basis of both the pleadings and evidence there was a dispute
regarding the capacity in which the defendant contracted. Whereas
the plaintiff’s main witnesses, Badenhorst and I.A. Maraun
(Maraun), testified, in confirmation of the plaintiff’s pleadings
that the plaintiff contracted with the defendant personally, Mr.
Queiroz on the contrary swore that he contracted as an agent of the
Angolan Government. As to stage payments the evidence on behalf of
the plaintiff was that these were to be made in advance, with the
first instalment being due immediately on conclusion of the agreement
and the second, third and fourth instalments preceding commencement
of all the four stages of contract work. Needless to record that the
defendant’s evidence was that while the first instalment was
payable as pleaded and testified to on behalf of the plaintiff, the
other three instalments were payable only after the completion of the
stages of the construction.





The
integrity of the contract is another bone of contention. The
defendant charged that in as much as 1 km of the agreed 75 km road
construction was not done, the plaintiff was in breach of the
contract. Consequently the defendant’s position was that the
plaintiff’s breach disentitled it to payment of the unpaid balance
of the contract price. On the other hand the plaintiff
counter-charged that the defendant was the party in breach. To
buttress its position in this regard the plaintiff contended that it
was a condition of the contract that the work place in which the
performance of the contract was to be carried out had to be safe and
sound, without posing danger to people or equipment. That condition
notwithstanding, the defendant did not make the 1 km stretch free of
the landmines which had even occasioned damage to equipment when work
over that stretch was in progress. By 8 December 2001 when the
plaintiff evacuated from the work place after reaching the 75 km peg,
the landmines had not been removed to make the place safe as per the
condition. Most importantly in as far as the plaintiff was
concerned, its claim was for the price of the work actually done,
namely road building or repair covering a distance of 74 km. The
plaintiff contends that there was substantial performance and
therefore the failure or refusal by the defendant to pay was
unjustified.





FACTS
IN ISSUE





From
the foregoing disputed and undisputed facts the issues which, in my
view, ensue and fall to be determined are as hereunder listed:






  1. Whether
    or not the defendant contracted in the capacity of an agent of the
    Angolan Government;








  1. If
    the defendant acted as such agent, whether or not he disclosed to
    the plaintiff’s representatives, Badenhorst and/or Maraun, at the
    time of negotiating the contract, that the defendant so acted as an
    agent;








  1. Whether
    or not the agreed instalment payment scheme was that payments be
    made in advance of each stage performance, as the plaintiff
    contended, or in arrear, as the defendant claimed;







  1. Whether
    or not, by reason of the fact that a one-kilometer stretch was
    undone, the defendant was discharged from his obligation to pay for
    that stage in which the one kilometer fell.






THE
ARGUMENTS ON APPEAL AND MY EVALUATION OF FACTS





I
must at the outset pay tribute to Messrs Mouton and Tötemeyer,
Counsel respectively for the appellant and respondent. It is quite
evident from the state of the heads of argument they prepared for
their clients and submissions they made before us that each of them
put in considerable industry in their endeavour to assist this court
arrive at an equitable settlement of this hotly contested judicial
tussle. We are indebted to both of them.





In
evaluating the facts of this case, it is important to stress that the
issue of the defendant's status in the contract making process
requires determination. This is because, firstly, it was raised in
the defendant's special plea (see paragraph 2.2 thereof), and
secondly because it was the subject of argument and submissions when
we heard the appeal.





I
shall now consider the submissions, together with the pertinent heads
of argument on the first of the facts in issue listed above. That is
the issue on whether or not the defendant contracted as an agent. In
reviewing the submissions on this issue it is necessary first to
refer to the rule of law which states that he who asserts the
affirmative must prove. That is to say that the burden of proof
rests on the party who substantially asserts the affirmative of the
fact in issue.





In
the present case the defendant averred in his special plea that he
was an agent. He is thus the party who asserted the affirmative.
The burden therefore rested on him to establish or prove that he
acted as an agent at the material time. Mr. Mouton stated in his
heads of argument the following:






D. Grounds
of Appeal







6. It
is submitted that his Lordship Mr. Justice Hannah, erred in having
found that-







6.1 The
agreement was concluded between the appellant and respondent as
contractor and sub-contractor respectively.







7. The
above submission by his Lordship Mr. Justice Hannah despite the
following:









    1. that
      exhibit “I” is a clear repetition and/or confirmation of the
      quotation given by the appellant to the respondent as embodied in
      annexure “A”;











    1. that
      Smeer being in the employ of the Respondent as a civil engineer and
      having been the site foreman and/or in charge of the construction
      of the road in Angola said his application for a work visa (exhibit
      “D”) that the contracting institution is the Angolan
      Government. This is very relevant especially if one has regard to
      the fact that Smeer was also at times present during the
      negotiations that lead (sic) to the conclusion of the agreement.”
















Then
in heading “E. Deduction of the facts” the following was stated
on the defendant’s behalf:






12.
It is especially submitted that the Respondent was all along aware
of the fact that the employer and/or principal was the Angolan
Government or at least someone other than the Appellant himself.”









In
the first place, the judge in the court a quo showed in
his judgment that he was fully cognisant of the contents of exhibit
“I” and annexure “A”. Annexure “A” was what was referred
to in the plaintiff’s particulars of claim as the written part of
the contract (see para 5 of the particulars of claim). Annexure “A”
was the facsimile dated 11th June 2001, addressed to the
defendant and was signed by Badenhorst. It set out the charge rate
for the work to be done, described what the work entailed and finally
specified the condition that the work place had to be “safe and
sound without danger to people and equipment.” On the other hand
exhibit “I” was the letter dated 1st August 2001
written by the Angolan Consul at Rundu, Namibia. It was addressed
for the attention of the defendant and its heading was “ Re
Budget.” There was in it a reference to the plaintiff. Its
content was in effect that there was a budget for the road
construction work to be done between Katuitui and Candelele. It
stated further that the distance to be covered was 118 km and that
the charge was to be N$24,000 per km.





The
trial judge considered the two documents. It was urged upon him that
the one, Annexure “A”, was the offer and the other, exhibit “I”,
the acceptance of the offer. The judge rejected that submission. He
held that in fact the contract was concluded in June on the basis of
annexure “A” and oral discussions held between the
representatives of the plaintiff and the defendant. He also found it
as a proved fact that the performance of the contract on the part of
the plaintiff commenced at the end of June or at the beginning of
July 2001. That finding of fact was consonant with the common ground
between the parties. I consequently cannot see any justification for
faulting the judge’ s factual finding in this connection. The
trial judge’ s finding was, moreover, in keeping with the settled
law that a contract comes into existence as soon as an offer has been
accepted. In other words the plaintiff could only have started at
the end of June or beginning of July because the offer in annexure
“A” had been accepted. If exhibit “I” was the acceptance of
the offer in annexure “A”, then the commencement of performance
by the plaintiff would have taken place on or after 1st
August 2001.





It
is granted that sometimes an offer is accepted “subject to
contract.” This is so, for example when a party to whom an offer
has been made gives an acceptance, but states that he first wishes to
seek the advice of his legal practitioner before affirming his
acceptance. But the mere qualifying of the acceptance in that way
would give a warning signal to the offeree that he should hold back
until clearance is given after the legal practitioner's advice has
been sought. In other words, the offeree would not even in this
qualified acceptance situation commence performance lest he should be
informed later that the legal practitioner's advice was adverse.





In
casu
, the evidence given on behalf of the plaintiff was to the
effect that the acceptance was given by the defendant directly. But
the defendant testified that after receiving the offer as per
annexure “A”, he first went to the Angolan Consul to seek
instructions before conveying the acceptance. The trial judge
factually held that that assertion by the defendant was not mentioned
to the plaintiff’s representatives with whom the defendant was
negotiating the contract.





It
is therefore not surprising that the trial judge rejected the
contention that exhibit “I” was the acceptance of the offer
contained in annexure “A”. Consequently I hold that this was not
even a case in which the acceptance was given subject to a contract
to be formalized later. I endorse the factual finding of the trial
judge that acceptance was given orally before commencement of the
road construction work.





Regarding
the role of Smeer, it is suggested on the defendant’ s behalf, that
he participated in the negotiations of the contract. For that reason
it was submitted that his statement in the visa application form that
the Angolan Government was a contracting institution was evidence
supporting the contention that that Government was the principal,
vis-à-vis the contract and that the defendant was its agent.
The trial judge equally considered that argument, but he was not
persuaded by it. Neither am I.





Mr.
Smeer was asked whether the defendant’s evidence that he disclosed
expressly his status as an agent of the Angolan Government was drawn
to his, Mr. Smeer’s, attention. His answer was an emphatic NO. He
was also asked whether he was concerned as to the identity of the
parties to the subject contract. His reply was “ I had actually
nothing to do with any paper work whatever.” These answers cannot
be said to have been made by a witness who was stating a categoric
fact, when he indicated in the visa application form, that the
Angolan Government was a contracting party. In fact he explained the
reason for his indication in the application form. He said that he
stated that the Angolan Government was a contracting institution
solely to facilitate his entry into Angola to perform the road
construction.





It
has been noted elsewhere in this judgment that in giving the
requested further particulars the defendant averred that the fact of
his being an agent was disclosed to a servant or official of the
plaintiff company. The only servants of the plaintiff who gave
evidence in the court a quo were Smeer himself and one
Gideon Mandundu, the bulldozer driver during the road construction.
None of these two gave evidence supportive of the defendant’s
averment on this point. It is therefore again not surprising that
the learned trial judge discounted the defendant’s contention to
that end.





Another
piece of evidence which Mr. Mouton sought to rely on in establishing
that there was privity of contract between the plaintiff and the
Angolan Government was in relation to reference No. 018. The
submission was that in his letter, exhibit “I”, the author
thereof, namely the Angolan Consul had used “ Order No. 018.”
Coincidentally and for an unexplained reason, the letter dated 15th
August, 2002, from the plaintiff’s directors, was captioned “
Repair Maqueda-me Road, Order Number 018.” The effect of Mr.
Mouton’s submission, as I understood it, was that the plaintiff’s
reference to Order No. 018 was an affirmation of privity of contract
between the Angolan Government and the plaintiff. That argument, in
my judgment, was speculative. Even assuming that that reference was
at the centre of the negotiations for the contract, the mere
reference to it by the Consul in exhibit “I” and the repetition
of it in Maraun’s letter aforementioned does not per se
give a clue as to the parties to the contract under
consideration. In fact there was no evidence placing Order No. 018
at the centre of the contract.





Much
capital was also placed on that piece of evidence by Badenhorst that
exhibit “I” showed that the defendant had taken the quotation in
Annexure “A” further, which observation, it was contended on the
defendant’s behalf, meant that the defendant, as an agent, took the
matter further to his principal. In my view nothing much turns on
that piece of evidence. The trial judge held that just as in the
Katuitui border post works the defendant was the main contractor and
the plaintiff the sub-contractor, the same relationship existed
between the parties when the road construction was being consummated.
I believe that on the recorded evidence in its entirety that holding
by the judge was based on solid ground and correct. I agree with the
judge. Indeed in a contractor and sub-contractor relationship there
is an employer common to both the contractor and sub-contractor. It
is the last named who, in the ultimate, pays not only the main
contractor, but also the sub-contractor. In this type of
relationship, therefore, it is not unusual that a sub-contractor
should express satisfaction when he learns that the main contractor
had taken the sub-contractor’s quotation to the employer.





On
the totality of the recorded evidence the defendant was a lone voice
in asserting that he acted as an agent of the Angolan Government when
he contracted with the plaintiff’s representatives. On the other
hand, all the plaintiff’s witnesses, Badenhorst, Maraun and Smeer,
gave evidence the effect of which was that the defendant never at any
time, expressly or by implication, disclosed that he was an agent. It
is a matter of comment adverse to the defendant that, whether
deliberately or through inadvertence, he failed to call a potential
witness who might have affirmed the averment in the special plea that
the defendant was truly a mere agent of the Angolan Government. In
his testimony the defendant asserted that on a number of occasions
during the negotiations he went to the Provincial Governor of Angola
to seek instructions. I believe that that was same Governor who
attended the meeting at the Safari Court Hotel when the dispute
relating to the unpaid balance of the contract price was discussed.
One would have thought that when it became critical to enlist the
Governor’s evidential assistance, at the time of the trial of the
action in the court a quo and when the defendant was
striving to establish that he was an agent, he would have called the
said Governor as his witness. Why was the Governor never called, if
I may ask a rhetorical question?





On
the issue of agency, I started by recalling the statement of law to
be found in Halsburys Laws of England that facts in issue which are
necessary to establish a claim by a party, or in some cases the
defence, and which have been alleged by one side but disputed by the
other side are facts in issue. In the majority of cases such issues
are determined by substantive law or depend on pleadings. They
require to be proved by the party who asserts them affirmatively. In
casu
, the agency issue was affirmatively asserted by the
defendant. He was, therefore, the one on whom the burden of proof
rested. The issue was forcefully asserted in the further
particulars, but the evidence in support of it fell far short of the
requisite standard of proof on a balance of probabilities. I
therefore hold that the defendant did not succeed in proving that at
the time of contracting with the plaintiff company’ s
representatives he was acting as an agent.





The
determination I have arrived at would ordinarily strike a coup
de grace
against the defendant’s special plea. The case
would have ended at this stage, but in order to leave no stone
unturned I shall nevertheless proceed to consider the remaining
issues which are listed above as those needing to be determined.
Accordingly the next issue I propose to deal with is whether or not,
if the defendant was an agent, he disclosed to the plaintiff’s
representatives at the time of negotiating the contract, that he was
so acting as an agent.





Reproduced
hereunder are the further particulars which the defendant pleaded
when he was requested to give further particulars as to whom, when
and where he disclosed that he was acting as an agent.






“1. Ad
sub-paragraph 1.1 thereof







The
said fact was disclosed to the plaintiff during 2001, alternatively,
was at all times relevant within the plaintiff’s knowledge and/or
was disclosed to the plaintiff by one of its own authorized employees
and/or officials.








  1. Ad
    sub-paragraph 1.2 thereof








The
said fact was disclosed to the plaintiff in Namibia, alternatively
(in) Angola. It is stated that such fact was at all times relevant
within the knowledge of the plaintiff alternatively, disclosed to the
plaintiff by one of its own authorized employees and/or officials.








  1. Ad
    sub-paragraph 1.3 thereof








The
defendant, alternatively a duly authorized official and/or agent of
the Angolan Government, disclosed such fact to the plaintiff. It is
stated that such fact was at all times relevant within the knowledge
of the plaintiff and/or disclosed to the plaintiff by one of its own
authorized employees and/or officials.”





It
suffices to state that in the said further particulars the defendant
also added that he acted personally when the fact was disclosed to
the plaintiff, adding further that the fact was disclosed both orally
and in writing.





The
same special plea was repeated in the defendant’s heads of argument
and subsequently in the submissions made by his counsel before this
court. The following aspects were also included in Mr. Mouton’s
submission: the alleged linkage between annexure “A” and exhibit
”I” ; the fact that the bull dozer used in executing the road
construction was known by the plaintiff to have belonged to the
Angolan Government. The foregoing were submitted as further
indicators of the plaintiff having at all times relevant known that
the defendant was acting as an agent.





In
fact the arguments relied on in regard to the issue of disclosure of
the defendant’s status as an agent are intertwined with those
relating to the first issue dealt with earlier herein. It is
necessary in my view to evaluate the same arguments as they
specifically relate to the second issue. It can be stated, however,
that all the evidence given by the defendant aimed at proving that
the plaintiff knew all along that the defendant was acting as an
agent was emphatically denied and refuted by the plaintiff’s
witnesses. Moreover, the argument referring to the Angolan
Government as having been known to be the employer and/or principal
can be a trap to the unwary and can lead to confusion.





An
employer in the present context is not to be equated to a principal.
For example all the plaintiff’s witnesses knew very well that the
Angolan Government was the employer: it was the one for the benefit
of which the road was being constructed. But the plaintiff’s
witnesses, particularly Badenhorst and Maraun, testified that they
knew that the Angolan Government was the employer in the context of
contractor and sub-contractor scenario. These two witnesses
expressly denied having known the Angolan Government as the principal
for whom the defendant had been acting as an agent.





The
trial judge considered this issue at great length in his judgment.
It was the one issue which he considered to be critical and pivotal.
In this regard he considered the law of principal and agent as stated
in the Law of South Africa, Volume I at paragraph 233
of the second edition. In accordance with that law, if an agent acts
for an undisclosed principal, such agent may be sued in his own name,
instead of that of the principal. It is evident from the judgment of
the judge that the position of the Angolan Government as an employer
was a known factor, but the judge held that the claim that the
Angolan Government was the principal for whom the defendant acted as
an agent was never disclosed to the plaintiff, not even to the
plaintiff’s directors, namely Badenhorst and Maraun.





The
judge in the court a quo also considered the
credibility of the witnesses, all the witnesses, he saw and heard
regarding disclosure. He roundly rejected the defendant’s
evidence, and consequently found the defendant less credible than the
plaintiff’s witnesses.





It
has often been stated that an appellate court does not have the same
advantage which a trial judge enjoys of seeing and hearing witnesses
as they give evidence in a trial. He is therefore in a better
position to assess the credibility of such witnesses. Appellate
judges should therefore be slow in interfering with a trial judge’s
assessment of witnesses’ credibility, unless such assessment is
found to be patently wrong.





Applying
the foregoing standard to the present case, I entertain no cause to
justify interference with the evaluation as to credibility which the
judge in the court below made. I think that he dealt with the
credibility issue competently. I therefore uphold his finding that
the defendant did not disclose his claimed status as an agent of the
Angolan Government. I consequently resolve the second issue in the
plaintiff’s favour.





The
third issue is whether or not the agreed instalment scheme was that
payments be made in advance of each stage performance, or in arrears.
On this issue it is common cause that the payment was to be effected
in four equal instalments, with the first instalment being made
immediately upon execution of the contract. Unfortunately there was
a dearth of evidence as to when the stages of performance were
commenced or completed, save for the commencement of the first stage
which was said – and this is common cause – to have been at the
end of June or beginning of July, 2001. It is further common cause
that the first instalment was paid on 7th September 2001,
which meant that on the agreed terms, the first payment was not made
immediately upon execution of the contract. There being no evidence
as to when the second and subsequent stages were commenced or
completed it is not possible to determine precisely when the second
and remaining instalments fell due for payment.





The
averment that instalment payments were payable in advance was pleaded
by the plaintiff. Therefore the burden to prove that averment rested
on the plaintiff. However, because of there being no evidence of
when the stages of performance began or ended, I hold that the
plaintiff did not discharge its burden in this regard. I hasten to
add, however, that the third issue is inconsequential as regards the
overall result of this appeal.





The
fourth and last issue to be considered and determined is whether or
not, by reason of the fact that a one kilometer stretch of road was
not constructed and/or repaired, the defendant was discharged from
his obligation to pay for that stage in which the one kilometer
stretch fell.





There
can be no doubt in this case that according to the contract which was
executed by the parties, the plaintiff was required to construct
and/or repair 118 kilometers of the Maqueda-me road between Katuitui
and Candelele in Angola. However it is common cause that during the
performance of the works aforesaid, by an oral amendment the distance
to be covered was reduced to 75 kilometers. The remaining stretch of
43 kilometers was allocated to another contractor. It is also common
cause that the plaintiff completed work stretching over 74
kilometers.





The
reason for not completing the one kilometer has already been alluded
to and I shall only concisely refer to this presently. For the time
being it is necessary to mention that the plaintiff’s claim is for
the price of work actually done on the 74 kilometers.





The
contract concluded between the parties was subject to a condition
mentioned in annexure “A”. Performance of the contract “was
subject to the area being safe and sound, without any danger to
people and equipment.” It is undisputed that during the
performance of work on the first 10 or 14 kilometers the bulldozer
being used by Gideon Mandundu, the plaintiff’s driver, struck
landmines. This happened three times. In the process the bulldozer
was put out of action and had to be replaced. By mutual agreement
the one kilometer landmined area was temporarily abandoned. Work
continued on the remainder of the road until the 75 kilometers peg
was reached. That was towards the end of November 2001. The
plaintiff did not leave the site until about 8th December.





At
the time of skipping the one kilometer landmined stretch it was
agreed, according to the evidence, that work would be concluded there
after the landmines were removed and the place made safe and
non-dangerous. The learned trial judge held as a fact that by the
time the plaintiff evacuated from the site on or about 8th
December the one kilometer stretch had not been cleared of the
landmines. That finding of fact was not impugned in the submissions
made on behalf of the defendant in this court. I therefore accept
that the defendant did not sweep or cause to be swept the landmines
which had constituted danger to people and equipment. The
defendant’s duty to ensure that such safety was guaranteed was a
cardinal condition of the contract.





As
to the 74 kilometers which were completed and handed over to the
defendant, there was no dissatisfaction expressed as to the
competence and standard of workmanship with which the plaintiff did
its work. In English common law, as long as there is substantial
performance by a contractor, the contractor is entitled to the
stipulated price, subject only to a cross-action or counter-claim for
omissions or defects in execution: See Bolton v Mahendra
(1972) 2 ALL ER 1322. This same principle has been applied as part
of South African Law. I reproduce hereunder a passage occurring at
page 480 of Wille's Principles of South African Law,
8th edition, authored by Dale Hutchison and three others:






"Incomplete
or defective performance







Where
the plaintiff has performed his reciprocal obligation but in an
incomplete or defective manner he is guilty of a breach of contract,
which gives rise to the normal contractual remedies, including
cancellation of the contract in the shortfall or defect is
sufficiently serious. If the defendant does not cancel the contract
he is entitled to insist on complete and specific performance of the
contractual obligation. He may therefore raise the exceptio non
adimpleti contratctus
to ward off a claim for counter-performance
regardless of the extent of the shortfall or defect (subject only to
the rule 'de minimis lex non curat'; but he must then
naturally afford the plaintiff an opportunity to rectify his
performance. If the plaintiff is unable or unwilling to do so he has
no automatic right to compensation for the defective performance that
he has made; however, the court may in the interests of fairness
relax the principle of reciprocity, refuse the exeptio and
order the defendant to make a suitably reduced counter-performance
(generally, the contract price less the amount necessary to remedy
the defect or shortfall). The court may exercise its discretion to
make such a reduced award even if the plaintiff knowingly and mala
fide
departed from the terms of the contract, but in all cases it
will do so only if the plaintiff proves (i) that the defendant is
utilizing the defective or incomplete performance; (ii) that
circumstances exist making it equitable for the court to exercise its
discretion in his favour; and (iii) the cost of remedying the defect
or shortfall, so that the reduced counter-performance may be
determined.







The
claim for a reduced counter-performance is based on the contract, not
on enrichment, and can be brought only when the contract is not
validly cancelled. Where the defendant cancels the contract and
retains the benefit of the defective or incomplete performance the
plaintiff may be able to recover compensation on the basis of
unjustified enrichment."





In
the present case, it is evident that the defendant accepted the
incompletely constructed road. The cost of remedying the shortfall
in the constructed road is mathematically calculable. This is
because under the contract the price payable was N$24 000 per
kilometer and the uncompleted road measured 1 kilometer. In point of
fact the plaintiff has already taken into account the aspect of what
it would cost the defendant to remedy the shortfall. This the
plaintiff did by claiming payment only for the work actually done.





It
is my considered opinion that circumstances do exist in this case
making it equitable for the Court to exercise its discretion in the
plaintiff's favour as the following facts show:






  1. the
    skipping of the one kilometer was mutually agreed because of the
    danger posed by the landmines.


  2. After
    completing the work actually done towards the end of November 2001,
    the one kilometer was still uncleared of the landmines.


  3. It
    was a cardinal term of the contract that the defendant had to ensure
    that the work place was safe and sound so as not to pose danger to
    people or equipment.


  4. The
    situation described in (b) above was still obtaining by 8th
    December when the plaintiff moved from the site.






In
the light of the foregoing, the argument on the defendant's behalf
that because the plaintiff did not complete the controversial one
kilometer stretch the plaintiff should forfeit its right to the
relief claimed runs counter to the principle enunciated by the
authors of Wille's Principles of South African Law,
supra; it is indefensible. The defendant cannot have his
cake and eat it: having accepted the actual work done it would be
inequitable for him to refuse to pay for it. So refusing would
amount to unjustified enrichment.





Before
I conclude this judgment I must refer to the question which was
raised in limine regarding whether or not this court
should condone the defendant’s non-compliance with the relevant
rules of procedure applicable to the prosecution of appeals to this
court. In the light of the fact that this court heard the appeal
without first delving into the said preliminary question, it would be
a mere academic exercise to purport to do so at this juncture. I
need say no more on this question, therefore.





Adverting
to the appeal, I hold, in the light of the conclusion I have come to,
particularly on the principal issues raised by the special plea of
the defendant, that this appeal lacks merit. I would dismiss it and
in doing so I make the following orders:






  1. The
    appeal is dismissed.








  1. After
    giving credit for the payments which the defendant made before this
    cause was instituted in court, I grant the plaintiff’s claim in
    the sum of N$453,000.







  1. The
    defendant to pay :








    1. Interest
      a tempore morae on the sum of N$506,000 at the rate of 20%
      per annum as from 9th December 2001 until 14th
      October, 2002;










    1. Interest
      a tempore morae on the amount of N$453,000 at the rate 20%
      per annum as from 16th October, 2002 to the date of
      payment.









    1. Costs
      of one instructing legal practitioner and one instructed counsel.



















_______________________


CHOMBA,
A J A.











I
agree

















________________________


SHIVUTE,
C J














I
agree

















__________________________


O’
LINN, A J A























COUNSEL
FOR THE APPELLANT:


INSTRUCTED
BY:


COUNSEL
FOR THE RESPONDENT


INSTRUCTED
BY:



MR
C.J. MOUTON


NEVES
LEGAL PRACTITIONERS


MR
R. TöTEMEYER


THEUNISSEN,
LOUW & PARTNERS