China Railways Seventh Group, a company owned by the Chinese government which was engaged by the Botswana government to build Thapama Interchange also known as the ‘Spaghetti Interchange’ in Francistown has lost a P3.7 million lawsuit against its former sub-contractor, Dry Landers (Pty) Ltd. The case was recently heard by Justice Lot Moroka at Francistown High Court. Dry Landers (Pty) Ltd was the Plaintiff in the case, while China Railways Seventh Group was the Defendant.
The lawsuit stemmed from a written subcontract between the two parties on or about the 25th of June 2015, where the Plaintiff was subcontracted to perform engineering works for the Defendant. The engineering works as outlined in court documents, included steel fixing, boiler making, steel engineering, threading and fixing water flow pipes, punching, drilling and bolting the Interchange structure. The Defendant failed to uphold the terms of the contract.
During trial, the Managing Director of Dry Landers (Pty)Ltd Gothatamang Reineetse testified that on the 25th of July 2015, the Plaintiff and the Defendant entered into a written contract which the Plaintiff began work on as agreed. The Defendant was represented by its Project Manager Mr Chang and a site Manager during this agreement. Despite several copies of the contract being signed, the Defendant’s Principals residing in China where the company’s headquarters are located, were supposed to review it and sign it. The Plaintiff’s Managing Director agreed in good faith to this arrangement but was not given a copy of the contract. Subsequently work commenced while awaiting final approval from China. The Plaintiff’s Director stated that they performed work in accordance with the contract and the Defendant’s Site Manager signed a daily log sheet acknowledging the work done.
The agreed contract between the parties amounted to P53, 863 000.00 for a 16-month duration. However, while work was on-going the Plaintiff’s Director was confronted with a new contract presented by a new manager named Wang, who was not part of the original negotiations. Wang insisted on a reduced price of P400,00 per ton which the Plaintiff refused to accept. The Plaintiff claims that this new Manager was aggressive, gave him an option to sign the revised contract or leave the site. Instead, the Plaintiff presented their claim for payment in accordance with the original figures. The Defendant refused to pay in accordance with the figures presented by the Plaintiff and insisted on the reduced price at the rate of P400.00 per ton. As a result, a dispute arose between the parties resulting in the lawsuit. The Plaintiff demanded a total sum of P3 771 329.60 in court as cost for damages. According to the Plaintiff, this disagreement led to a financial strain, affecting their ability to meet financial obligations such as paying wages and material supplies.
In response, the Defendant’s Commercial Manager, Yudong Sun, argued in court that no written contract was signed, and parties only agreed on a rate of P400 per ton, pending approval from China. Sun claimed that negotiations were still ongoing, and the Plaintiff reneged on the agreement by refusing to sign the revised contract.
In the Final Pre-Trial Order, the parties agreed that the Plaintiff successfully constructed 543 piles at a cost of P1,303,200. The Plaintiff’s Director also presented evidence of work done on the eastern column for P2 000,000, supported by photographic evidence and signed log sheets.
Justice Moroka ruled in favour of the Plaintiff, stating that they had proven their case on a balance of probabilities. The Judge highlighted that it is worthy to note that the Plaintiff s witness told court that when the Defendant negotiators informed them that the signed contract had to be sent to China for approval, it was clear that the parties agreed in lieu of the contract. The Defendant would then write a letter confirming the existence of the contract embodying some salient aspects of the contract. The letter formed part of the court documents.
‘The letter was written by the Defendant’s site Manager. In this letter, he says that the letter serves as a shadow of the main contract; a letter signed by both parties. This confirms the Plaintiff’s testimony that the parties did sign an agreement. This therefore means that the unsigned contract that was presented to the Plaintiff by a new manager is not the signed copy that was sent to China.’
‘It is a revised version as it had no signatures. The other difficulty is that suddenly, the persons with whom the Plaintiff dealt with were withdrawn and new persons introduced on the side of the Defendant. None of the persons could speak to the letter that was written in lieu of the contract and the contract itself,’ said the Judge.
The Judge criticized the Defendant for failing to call key witnesses who could have shed light on the negotiations and performance of the contract. He noted that the signed log sheets provided substantial evidence of the Plaintiff’s performance.
‘Most importantly, over and above the evidence of the Plaintiff’s Director, the signed log sheets are evidence of performance of the contract by the Plaintiff in specified quantities on the price averred by the Plaintiff,’ said Judge Moroka in his ruling.
The Judge agreed to the relief sought by the Plaintiff.