The North West High Court has dismissed an urgent application by Ditsobotla Local Municipality and ordered it to pay Kwende Construction CC over R7-million [R7,518,171.22] for emergency electrical repairs, plus interest, within 14 days.
The judgment, delivered by Acting Judge Charlotte Oosthuizen-Senekal, also awarded costs against the municipality on an attorney-client scale.
According to the court, the dispute came after Ditsobotla appointed Kwende on November 7 2023 to restore electricity to six areas following a total power failure.
Municipality signed agreement of debt
Kwende completed the repairs by December 13 2023. Ditsobotla issued a Certificate of Completion on December 17. The agreed contract price was R7,698,337.47, with Ditsobotla paying R1,000,000. It also acknowledged a debt of R7,368,171.22 in a signed agreement on December 22 2023.
However, despite the signed agreement, Ditsobotla refused to settle the balance. It sought to interdict Kwende from tampering with its electricity infrastructure.
Kwende, in a counter-application, demanded payment for the services rendered.
The court found the municipality’s claims of irregular procurement unsubstantiated. It noted the emergency procurement was lawful under the Municipal Finance Management Act.
“The evidence is clear,” said Oosthuizen-Senekal.
Refusal to pay unjustifiable
“Kwende was lawfully appointed, completed the work, and Ditsobotla certified it. The municipality’s refusal to pay, despite its own acknowledgment of debt, is unjustifiable.”
Through its lawyers, Ditsobotla argued the procurement was unlawful and requested referral to oral evidence. But the court rejected this, finding no genuine factual dispute.
“The municipality cannot now dispute its own contract and certification without evidence of fraud or irregularity,” Oosthuizen-Senekal added.
The main application by Ditsobotla remains pending. But it was deemed unnecessary after Kwende undertook not to interfere with infrastructure. The court emphasised that the municipality’s failure to pay violated its statutory duty to settle undisputed debts within 30 days.
Ditsobotla now faces a significant financial burden, with interest accruing from January 31 2024 until payment is made.
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