Contractor demands P1million from MTI

Mpho Mokwape | Tuesday January 19, 2016 15:06

 

The trial court dismissed the construction company’s case on December 2011, which was instituted on May 17, 2010 against Department of Roads under the Ministry of Transport and Communication, and the Attorney General.

The cause of action was based on a written contract for construction of Mmadikola and Rakops Village Access Roads Projects and now they want the state to pay for the relocation of services such as water pipes, the work that was completed before the termination of the contract on January 13, 2010.

The company lawyer, Tumisang Dow, submitted that despite the termination of the contract, his clients were entitled to payment for the work carried out on the relocation of water pipes.

He argued that the trial court should not have dismissed their action because when the contract was terminated, the work was already done, therefore his clients were entitled to payment, besides the fact that the termination was unlawful.

“We maintain that the trial court’s findings that the termination was lawful is in error, but we will however only present submissions relating to payment certificates,” he said.

Tumisang said the three water pipes under certificate number 6, 7, and 8 dated November 11, 2009, January 14, 2010 and March 2009 for period ending 2010 respectively were completed and certified on time before even the notice for contract termination.

He argued that even the Ministry’s own witnesses had conceded that payment certificates especially number 6 was certified prior to termination and on that basis it should have been honoured.

“The trial court should at the very least grant my client an order in terms of the said certificate including interest and in that order we are entitled to relief sought being payment of interim payment for those certificates, for payment for work done and certified in terms of the contract,” he said.

Dow explained that as such, his clients were entitled to payment for the three certificates amounting to P1,006,327 being work done prior to termination of contract and approved by the Ministry consultant engineer.

The company had entered into the contract with the Ministry in September 2008 to August 31, 2009 and was extended by 219 days, lapsing in April 14, 2010 before it was terminated on January 13, 2010. The sum of the contract was over P7 million inclusive of contingency and Vat.

Motsioeme Taunyane, representing the state said the court a quo was right in dismissing the suit because the termination was lawful and that the three certificates were not due and payable.

He maintained that the contract was terminated due to non-performance and that the company had failed to complete the contract on time and even failed to make significant progress after the contract was extended.

“Payments are not due under the certificates mentioned because if the payments were due to any other contractor it would still be outstanding. There is a procedure for a claim, the contractor was to resubmit substantial claim under those certificates,” he said.

Taunyane said the reasons for non-payment of the certificates were that all certificates approved after November 2009 which was certificate 7 and 8 were not due because it was improper to approve after termination.