BUSINESS ASSOCIATES TAKES DESTINY GROUP TO COURT

MBABANE – The High Court of Eswatini has dismissed an application of absolution made by Destiny Group (Pty) Ltd in their case against Business Associates (Pty) Ltd.

The application was dismissed by High Court Judge Bongani Sidney Dlamini, who further instructed Destiny Group (Pty) Ltd to pay costs of the application. Business Associates (Pty) Ltd was the plaintiff in the matter while Destiny Group (Pty) Ltd was the defendant. The plaintiff issued summons demanding payment from Destiny Group (Pty) Ltd, who in turn made an application for absolution alleging the plaintiff has not made out a case which could require them to take the witness stand in opposition to the plaintiff’s claim.

In his judgment, Dlamini said on August 25, 2021, the plaintiff issued combined summons and sought relief against the defendant which includes the payment of the sum of E152 000 plus 9 per cent interest. The defendant filled all the necessary opposing papers to plaintiff’s claim and both parties applied for a trial date. The matter was accordingly allocated March 24, 2022 as the first date of trial. Dlamini said the matter could not take off and was subsequently allocated May 24 and 31, 2022 as the new trial date. The one and only witness to give testimony during trial on behalf of the plaintiff was its director, Innocent Mxolisi Dlamini.

Partners

The High Court Judge said Business Associates (Pty) Ltd director informed the court that during the year 2017, his company partners with the defendant and was engaged as a Contracts Manager for certain projects awarded to the defendant. On May 11, 2017 the parties signed a written contract in which the plaintiff was engaged as Project or Contracts Manager. The contract, according to the judgement was for a period of six months with the condition that it could be reviewed for a longer period as may be agreed between the two parties. The judge said in terms of the agreement between the two parties, the Plaintiff was to be remunerated at the rate of E38 000 per month for the service rendered to the defendant.

“Business Associates (Pty) Ltd testimony was that after the lapse of the initial six months, they continued to render service to Destiny Group. The Plaintiff stated that the final invoice issued to the Defendant was in January 2020,” he said. Dlamini, in his judgement added that the above mentioned was the period upon which the relationship between the parties formally came to an end according to Business Associates (Pty) Ltd. The judge further mentioned that the plaintiff’s claim against the defendant was for payment for services rendered from the period of October 2019 to January 2020.

Rendered

This was a period of four months in which Business Associates (Pty) Ltd alleges they rendered service to the defendant but was not paid the agreed monthly sum of E38 000. “The period of four months in which the plaintiff alleges they were not paid the monthly sum of E38 000 adds up to the total sum claimed of E152 000 as reflected,” mentioned Dlamini in the judgement. Destiny Group, through cross examination, has disputed that plaintiff rendered any services as all to them, not just from October 2019 but actually from January 2019. For this reason, the defendant filed a country claim against the plaintiff and sought to be refunded the sum of money paid to the plaintiff from January 2019 up to September 2019.

Determination

“In order to make a proper determination on the contention being made on behalf of the defendant, it is important to touch on certain key points from the testimony of Business Associates (Pty) Ltd’ director,” said Dlamini in the judgement. The judge said it was Business Associates (Pty) Ltd evidence, through its director, that despite the unavailability of building or other material, work on the ground was ongoing in that there were other site works proceedings. He said it was the director’s evidence that the defendant had a specific contract with the client which required the former to always be on site.

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