THE HIGH COURT OF SWAZILAND
CONSTRUCTION (PTY) LTD
COUNCIL OF MBABANE
Trial No. 997/97
Plaintiff Mr. Dunseith
Defendant Mr. Flynn
plaintiff is a construction company, Marbel Construction (Pry) Ltd.
Defendant is the City Council of Mbabane. The claim arises out of a
building contract in terms of which the plaintiff undertook to
construct an abattoir for the defendant. The contract provided that
the Architect, agent, or Consulting Engineer, as he was variously
referred to, was to make periodic certificates reflecting the amount
then to be paid as progress payments, by the defendant for work done.
It appears that things went wrong with the contract and eventually in
January 1997 it was agreed that a final certificate would be issued
and that the contract would be terminated at that date and that the
amount of the final certificate will be paid.
is on this certificate that the plaintiff now claims provisional
it was envisaged by the parties that a new contract would be entered
into by them for the completion of the abattoir. It was also
contemplated that in the amount of the final certificate above
referred to, there will be included the sum of the retention monies
then held by the defendant to cover any defects in the building which
may later become apparent or manifest. The certificate, signed by the
agent was duly issued but the defendant has refused to pay the
certificate alleging that payment of the amount reflected therein is
subject to preconditions agreed upon by the parties on the 29th
January. The plaintiff in turn says no such conditions were agreed
law is quite clear that in these proceedings the holder of the liquid
document is entitled to provisional sentence and, payment, subject to
giving security de restituendo, unless a defence is raised which will
succeed on the probabilities should the principle case be gone into.
In this case it is for the defendant therefore to show that these
conditions exist and not only to show that they exist but that their
terms are sufficiently certain to enable them to constitute a
defendant says that the conditions which were imposed, (see para 6.1
of the Defendant's affidavit), are the following:
terms of the oral agreement of the 29th January, 1997 with the
contractor and the plaintiff were as follows –
- The issue of the certificate number 15 by
and payment against it by the defendant was conditional upon the
a bank guarantee acceptable to the defendant in the sum of El 12
583.00 as security for retention money payable on the certificate.
The guarantee would be provided prior to payment on the certificate
by the defendant.
pause here to consider this particular condition itself, and observe
that in the first place the terms of the guarantee are not described.
It is said to be a guarantee acceptable to the defendant. It is not
even stated that it should be reasonably accepted to the defendant.
is solely in the defendant's discretion whether or not to accept the
guarantee. There is a multitude of the authorities to the effect that
a contract on these terms where the degree of performance is left to
the sole discretion of one of the parties is in fact not a contract
at all. Beyond saying that the guarantee is to be in the sum of El 12
583 it says that a security for retention monies payable on the
certificate, it does not say for how long this guarantee is to remain
in force or on what conditions it becomes payable. It does not say
how the amounts are to be determined and it is said that the
guarantee would be provided prior to payment on the certificate by
the defendant. It is difficult to see how that could have been a term
of the agreement on the 29th January, 1997 because it is so vague and
imprecise that in my view that in itself militates against the
defendant being able to establish that such a term was agreed.
second term is also mentioned in paragraph 6.1.2. It is said that,
the second condition was that the certificate number 15 would
constitute an interim final certificate. I pause here to observe that
the words "interim and final" are mutually exclusive and
the paragraph goes on.
would be issued for the purpose of bringing end to the existing
contract between the parties."
again the wording is inappropriate as a final certificate itself did
not terminate the original contract.
is also said in the same paragraph that a final certificate would be
issued on the completion of the abattoir construction project in
terms of a completion contract which was envisaged by the parties for
this purpose. Now this contract is nowhere described. All that the
parties say here is that they are going to enter into some contract
the object of which was to reengage the plaintiff to complete
the abattoir but there is no mention of what consideration was to
pass for this additional services or any of the other terms which
could be necessary to be agreed upon were even mentioned.
third condition was that the plaintiff would extend an insurance
cover on the building until completion of the construction of the
abattoir. This again is related to the second condition because if
there was no contract entered into and maybe the abattoir would never
be completed and the plaintiff would remain unpaid for monies which
were admittedly owing.
seems to me very unlikely that these discussions on the future
relationship between the parties constituted contractual terms
subject to which the certificate was issued. It is true that there
are statements on affidavits that such a contract was entered into
providing for such
A witness for the defendant has said this on oath and hi statement is
confirmed by the very person who signed the certificate. On the other
hand the certificate itself makes no mention of the feet that it is
conditional and in view thereof it seems to me that the person who
made the certificate would be at some difficulty giving evidence at
the trial to establish that these conditions existed.
therefore find that the defendant has not at this stage, discharged
the onus of showing that it has any probability of success in the
principle case and I order that the provisional sentence issue as
prayed in the sum of E344 626.49 together with interest calculated at
the rate of 9% per annum from 30th of March, 1997 to date of payment
and costs. Such payment to be made subject to the provision of
security de restituendo .in terms of the rule of Court