BLLAHWU to fork out a million pula
Goitsemodimo Kaelo | Tuesday February 28, 2023 06:00
The union had approached the apex court hoping to reverse the High Court’s decision ordering it to pay BIT Systems, P861,400 together with interest following a soured relationship with the company contracted to install certain software on the union’s computer system in 2015. The two had entered into a contract totalling P1,447,152 which was to be paid in three equal instalments of P482,384. The payments were to be done after every three months in terms of services contracted for having been paid until the end of the contract.
However, midway through the work, BIT Systems ended the agreement by shutting down all systems installed in the union’s computers after the union failed to adhere to the contract payment terms and dispute resolution procedures eight months later, forcing the IT company to approach the court to seek redress. On the other hand, BLLAHWU contested that BIT Systems misrepresented certain information to the union, which induced it to enter into a contract with the company. It also argued that BIT Systems failed to deliver as per the agreement between them while it also supplied fake hardware and unauthenticated software without proper licenses.
The High Court ruled in favour of BIT Systems, prompting BLLAHWU to approach the CoA in a bid to reverse the decision of the lower court. The union believed the High Court erred in finding that BIT Systems performed the services it invoiced for in line with the contract between the parties and that the union was liable to pay the company. It also argued that the High Court erred in failing to deal with the impact of the act of disabling access by BIT Systems in light of the clear terms of the parties' contract.
The union was dealt a blow when Justice Lakhvinder Singh Walia dismissed the appeal with costs. Justice Walia said it is quite clear that the purported contract termination by BLLAHWU was not in terms of Clause 16 of the contract. The clause provides that if either party is in breach of contract and does not remedy that breach within two days after receiving written notice from the other party, then the other party may, at its option, suspend the performance of its obligations until the breach is remedied. The party, which is in breach of contract, will have no claim against the other party on account of its obligations under these circumstances.
In addition to any claim by either party arising out of the termination of this agreement pursuant to Clause 17.1, termination will not discharge either party from payment of any sums due or becoming due by reason of the termination. “In my view, the actions of the appellant amounted to repudiation which the respondent accepted by suspending its services thus bringing the contract to an end. There can, therefore, be no doubt that the contract came to an end upon acceptance by the respondent of its repudiation by the appellant. The retraction of its repudiation by the appellant was of no consequence for it is trite that a contract, once cancelled, cannot be revived,” read the judgment in part. Justice Walia said the lower court was right in finding that BIT Systems was justified in 'cancelling' the contract. Justice Walia said based on the evidence and pleadings before it, the High Court cannot be faulted for the findings it made.