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CRSG loses 'Spaghetti' road suit

LEBOGANG MOSIKARE
Spaghetti road in Francistown
FRANCISTOWN: A Chinese state-owned subsidiary, China Railways Seventh Group Botswana (Pty) Ltd (CRSG), started on a false start after it lost an instance of absolution lawsuit that was instituted by the director of Dry Landers (PTY) LTD.

Dry Landers was sub-contracted by CRSG on July 25, 2015 to carry out various tasks at the Thapama Interchange Junction in Francistown popularly known as the ‘Spaghetti’ road. The Spaghetti cost government close to P1 billion (P979, 995,312.38).

The lawsuit was launched by Gothatamang Reineetse against CRSG, which is wholly-owned by China Railway Group Limited, whose major shareholder is the Chinese state-owned China Railway Engineering Corporation (CREC) for alleged breach of contract.

He alleges that CRSG owes him close to P3.7 million.

In his judgement, Justice Lot Moroka said the defendant sought to be absolved from the instance of absolution by the plaintiff in terms of which the plaintiff sought various reliefs.

Reineetse wanted CRSG to pay him P246,048 as the amount for the construction of 25,63 tonnes of 12 metre piles, payment of P219,072 as the amount for the construction of 45,64 tonnes of nine metre piles, payment of P2,240,000 as the amount for the construction of 0,64 tonnes of six metre piles and payment of P1,303,200 as the amount due for the construction of 543 rings. He also wanted payment in the sum of P2,000,000 as the fair and reasonable amount due for the construction of the eastern first column structure and interest of 10% per annum from the date of default.

“The plaintiff led evidence that on July 25 in 2015, he entered into a written contract with the defendant in the terms outlined above to do steel fixing of piles, boilermaking and steel engineering, threading and fitting of water flow pipes, punching and drilling at the Spaghetti road.

The budgeted price of the contract was P53,863,000 and was to run for 16 months,” stated Moroka.  While alleging that the contract was written, Moroka said, the plaintiff was unable to annex a copy thereof as he alleged that the defendant had taken all copies to China for countersigning.

“The original contract was never sent back to him. He instead annexed document DL1 as an extraction of a summary of the contractual terms.

The plaintiff alleges that in breach of the contract, on September 28, 2015, the defendant summarily terminated the contract and failed or refused to pay the sums of the money due and owing,” said Moroka. “Upon the close of the plaintiff’s case, counsel for the defendant made a submission of absolution from instance.  She argued that the plaintiff had failed to establish a prima facie case on the basis of which the defendant may be called upon to answer.”

The defendant’s attorney further raised a number of issues in furtherance of the submission, said Moroka. “The central message in the submission for absolution was that the plaintiff has failed to prove the existence of the contract between the parties and that the plaintiff also failed to prove performance in accordance with the contract.

She also submitted that that plaintiff had failed to prove the quantum of the various amounts he is claiming,” Moroka said.

Quoting from a case law, Moroka stated that “when absolution from instance is sought at the close of the plaintiff’s case, the test to be applied is not whether the evidence led by the plaintiff establishes what would be finally required to be established but whether there is evidence upon which a court applying its mind reasonably to such evidence could or

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might (not should nor ought to) find for the plaintiff”.

“The question therefore is whether the plaintiff has adduced evidence upon which a reasonable tribunal or court could or might find for it.

If the answer to the question is in the negative, absolution should be granted, if it is in the affirmative, absolution should be refused,” said Moroka. He continued: “The court at this point is not seized with a question of fact whether the plaintiff has proved its case on a balance of probabilities.

 That is the duty of the trier of fact at the tail end of the trial when the probabilities of the case are put on a balancing scale.” “The court at this stage is seized with a question of law-whether evidence adduced by the plaintiff establishes a prima facie case.

As a result, the court is not called upon to enter into an evaluation of the truthfulness and credibility of witnesses. Absolution from instance can only be granted if the onus rests on the plaintiff.

If the onus rests on the defendant, absolution from instance cannot be granted either at this stage or at a later stage,” said Moroka quoting from another case.

He added that therefore to survive an application for absolution from the instance, the plaintiff’s evidence must establish all elements of the claim…

In his conclusion, Moroka noted that in the light of the evidence presented by the plaintiff against what the defendant has pleaded as its defence, it is very evident that the defendant subcontracted some work to the plaintiff. “The plaintiff carried out some work and in the middle of the plaintiff’s performance, the defendant presented the plaintiff with a document to sign. The document reflected the rates as P400 per ton, which the plaintiff refused to sign.

A dispute between the parties arose which culminated with this lawsuit. The law does not require the court to weigh the probabilities and determine if the plaintiff has proved its case on balance of probabilities,” said Moroka.  Similarly, Moroka noted, that the law does not require the court to determine the credibility of the plaintiff’s witness.

In casu (throughout this judicial action) both parties acknowledge that a contract document was sent to China for signature and that in the interim the plaintiff carried out some work.

“The issue as to whether the correct rates were is, an issue of fact to be determined by the trier of fact at the appropriate time. Similarly, the question whether the value of the work carried out by the plaintiff was over valued or not is a question of fact to be determined upon the balance of probabilities.

What is before me suffices to put the defendant to its case.  The application for absolution from instance cannot succeed,” he said. “The court orders that the application for absolution from instance is dismissed, the defendant is put to its defence and the defendant shall pay costs of the application,” said Moroka.

When the case appeared for status hearing on Friday, the attorney who was holding brief for the defendant’s lawyers told the court that the defendant intends to appeal the ruling and will file its plea. Justice Moroka subsequently set the matter for May 9 for a hearing on arguments. Attorney Gontse Simon represented the plaintiff.



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