Phadi- Mmutle, Co appeals in P550 million pipeline case

Innocent Selatlhwa | Monday September 8, 2025 15:24

With the High Court having determined that the actions of Tianyuan Construction and G & M Building Joint Venture (JV) to lock out and deny the Corporation and its employees’ entry and access to the chambers to the water tanks for the supply of water to the villages of Ditlharapa, Molete, and Mokatako villages constitute an act of spoliation, the JV has now approached the Court of Appeal.

WUC, through attorney Kago Mokotedi, had dragged the JV (first respondent) and the project manager, Kelebogile Monnaatshipi (second respondent), before the court after the contractor shut down the water supply to some villages in the Borolong area by shutting and putting padlocks on chambers supplying water to villages in the area.

Amongst their arguments, WUC contended that from the reading of the letter from the JV, they did not dispute locking the chambers. That in conceding to the locking exercise against the peacefully possessed, such amounted to unlawful self-help to exert pressure on the applicant to address grievances raised in the letter.

For his part, attorney Mooketsi Segaise, representing the JV, argued that there was no way the JV could have handed over the chambers without the compulsory disinfection. He denied that his clients exercised any self-help but rather exercised contractual rights and obligations to protect public health under clause 4.18 (Health and Safety), which provides for the contractor to ensure works are carried out in compliance with applicable health and safety requirements.

Delivering the judgment, Justice Dr Ookeditse Maphakwane said the court had noted and considered the contradictory reasons advanced by the JV, which seek to deny the peaceful possession of the chambers and water tanks and equally discredit the taking over certificates which were signed by the JV’s project manager, Nginani Mbayi.

“The Court holds that the taking over of certificates WUC4 unequivocally gave the applicant peaceful and undisturbed possession, as confirmed by the JV’s representative. The certificate also indicated that there were no outstanding works. As such, the respondents’ conduct amounted to acts of spoliation and was therefore unlawful,” he stated.

Maphakwane said the JV insisted that they had contractual grievances which they wanted to coerce the applicant to resolve by despoiling the applicant’s possession of the chambers and valves. “This cannot be because even the FIDIC conditions for construction and the parties’ tender contract recognise a dispute resolution mechanism of either arbitral or litigation. Spoliation conduct committed by the respondents cannot, therefore, be countenanced by this Court,” he said.

He said in spoliation proceedings, such as this, the court will not entertain arguments relating to the respondent’s contractual rights or entitlement or contractual grievances. Maphakwane said it will not be in the interests of justice not to accede to the applicant’s spoliation application for restoration of water supply to the affected villages, as the requirements for spoliation have been met.

“Whatever rights and grievances the respondents may legally or contractually have would have to be taken to the appropriate litigation forum. This Court has an obligation to ensure that the rule of law is respected and reigns supreme regardless of the intensity of the parties’ contractual claims. Therefore, the applicant has discharged its onus of proving spoliation as alleged and respondents have failed to negate it,” he said.

In the result, Maphakwane said the application succeeds, and the rule nisi granted on 18th July 2025 was confirmed. Costs were awarded to WUC on an ordinary scale against both respondents.

In their appeal papers prepared by Segaise, the JV state that Maphakwane erred in holding that WUC had proved peaceful and undisturbed possession of the chambers and tanks, when the evidence disclosed possession only of the Ditlharapa-Mokatako pipeline, which operated without use of the chambers or tanks.

They also state the lower court erred in granting spoliatory relief extending to additional villages and facilities not pleaded or proved by WUC, contrary to the principle that a litigant must stand or fall by its pleadings.

The JV argues that the High Court misdirected itself by relying on allegations of commission raised for the first time in WUC’s replying affidavit, contrary to the settled rule that an applicant must make out its case in its founding papers.

“The Court a quo erred in compelling premature transfer of possession contrary to the FIDIC Red Book, thereby leaving the Appellants with risk and liability without control, disrupting the contractual allocation of responsibilities under Clauses 10, 11, 17, and 18,” they state.

Segaise further states that the lower court misapplied the doctrine of spoliation by conflating contractual entitlement and statutory mandate with factual possession, contrary to settled principles.

“The Court a quo failed to appreciate that, if the Respondent (WUC) was in possession, then Clause 10.2 of FIDIC deemed a takeover, transferring risk, care, insurance, and operational responsibility to the Respondent, rendering the order contradictory and unsustainable. The Court a quo ignored material evidence, including the Respondent’s own correspondence, in which the Respondent expressly refused to take over the works absent certification, disinfection, and completion, evidence inconsistent with possession,” they submit.

They further state that Maphakwane erred by holding as a fact that the JV insisted that they had contractual grievances, which they wanted to coerce WUC to resolve by despoiling the possession of the chambers and valves.

“The Court a quo erred in granting both the main relief (spoliatory) and the alternative relief (temporary interdict), both at the same time with the effect of handing over the project to the Respondent, though incomplete until the parties’ dispute resolution mechanism in the form of DAB had been complied with,” they argue.

They now want the order of the lower court to be set aside, have WUC’s claim against the JV to be dismissed; or, in the alternative, it be confined strictly to the Ditlharapa-Mokatako pipeline section, expressly excluding chambers and tanks.

In the further alternative, and only if the CoA finds that possession by WUC amounted to a deemed takeover under Clause 10.2 of the FIDIC Red Book, they want the court to declare that all risk, custody, insurance, and operational obligations passed to WUC as from the date of such deemed takeover;

Declare that, at a minimum, such deemed takeover is effective from 19 August 2025 (the date of the High Court order), during which period WUC had use and possession of the works;

Declare that the JV’s liability from that date is confined to rectification of defects notified under Clause 11;

Indemnify the JV against any claims arising from WUC’s use and possession during the subsistence of the High Court’s order.