LIGOGA QUARRIES WANTS KUKHANYA’S E20 MILLION PAYMENT STOPPED

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.

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