Times Of Swaziland: LIGOGA QUARRIES WANTS KUKHANYA’S  E20 MILLION PAYMENT STOPPED

LIGOGA QUARRIES WANTS KUKHANYA’S  E20 MILLION PAYMENT STOPPED
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Mbongiseni Ndzimandze on 30/06/2022 09:05:00


MBABANE – Ligoga Quarries yesterday moved an urgent application to stop
government from paying over E20 million to Kukhanya Civils and Construction
(PTY) Limited.
The money was to be paid to Kukhanya as settlement for the roadwork for
Sicunusa- Gege Road. The applicant (Ligoga Quarries) wants the court to
interdict the Ministry of Public Works and Transports and the accountant from
paying a sum of E20 361 372.89 to Kukhanya Civils and Construction (PTY)
Limited. Respondents in the matters are Kukhanya Civils and Construction (PTY)
Limited, Ministry of Public Works and Transport (Roads Department), the
accountant general and the attorney general. According to the applicant, the
money government intends to pay to Kukhanya was in terms of Payment Certificate
No.37 being the final payment it (Kukhanya Civils and Construction) for the
construction of the Gege- Sicunusa Road.
The Managing Director of Ligoga Quarries, Mandla Abednego Mkhaliphi deposed to
an affidavit where he narrated to the court why his company wanted government to
be interdicted from paying Kukhanya. Mkhaliphi is the proprietor of Portion 3,
Farm 982, which was in the centre of controversy following that soldiers were
deployed in it. The soldiers were deployed at the farm when it had ceased
operating following that its commercial license to mine quarry had expired in
2018. In his founding affidavit, he informed the court that the Ministry of
Public Works and Transport was the employer of the project while Kukhanya was
the contractor. He brought it to the attention of the court that Ligoga was a
sub- contractor.
He narrated to the court that as sub-contractor, Ligoga Quarries entered into
supply of crushed stone aggregates at very high volumes agreement exclusively
for the project.  According to the MD, the applicant performed in terms of the
supply agreement by causing the excavating and crushing of stone aggregates.
Mkhaliphi alleged that the first respondent purportedly negated and/or delayed
paying invoices which were presented by the applicant for payment. It was
further his submission that the first respondent allegedly refused or neglected
to pay the invoice despite receiving payments from the Ministry of Public Works
and Transport. “As a result of non-payment, the applicant was forced to cease
supplying the first respondent with the crushed stone aggregates. There were
numerous meetings, at a considerable cost to the applicant, that were held with
the first respondent in a bid to receive or compel payment. These meetings were
unfruitful,” averred Mkhaliphi.
He informed the court that around February 2018, the first respondent not only
disappeared but also ceased hauling the crushed stone aggregates from the
applicant’s site. This, according to Mkhaliphi, resulted in the accumulation
of a considerable crushed stone stockpile which hindered the applicant’s
operation and eventually forced it (applicant) to shut down its operations.
“Further, the stockpile at the applicant’s site gave rise to a charge of
standing time and/or delay in collection. The accumulated standing time charged
by the applicant amounted to E20 361 372,” contended Mkhaliphi.
Mkhaliphi highlighted that Kukhanya and the Ministry of Public Works and
Transport subsequently terminated their relationship in respect of the project
and concluded a termination agreement to resolve, inter alia, outstanding issues
including disputes about monies owed for services rendered during the
subsistence of the project. He alleged that at the termination of the project,
the amount due and owing to the applicant for the supplied crushed aggregates
was E1 412 0185.55.  Then MD pointed out that the applicant demanded payments
for the crushed stone aggregates and the standing time claim from the first
respondent.  He argued that the first respondent failed and/or refused to make
the payments for the two claims and this then compelled the applicant to
institute proceedings in the High Court of Eswatini in an effort to recover the
payments for the services rendered during the product.
The applicant’s lawyer Bahle Nkonyane from Magagula and Hlophe argued that her
client was entitled to an interdict order preserving the status quo pending
final determination of the parties’ right. She contended that that the
applicant was entitled to and had a right to payment for services rendered
during the project. “The harm, the applicant stands to suffer if the interdict
is not granted is palpable. When it comes to making payments, the first
respondent has always been evasive. This application is a fifth proceeding the
applicant has instituted in the High Court in trying to secure payment from the
first respondent in respect of the project,” she argued.
Meanwhile, the first respondent’s attorney, Majaha Tengbeh from S.V Mdladla
Associates argued that the matter was improperly before court. He informed the
court that the same matter was before Judge Mumcy Dlamini who had all the facts
about it hence she was better positioned to hear the urgent application filed by
the applicant.  The Ministry of Public Work was represented by Assistant
Attorney General Mbuso Simelane.