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POTS WANTS JUDGMENT SET ASIDE

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MBABANE – Pots Construction and Technical Services wants the execution of the summary judgment (court order) granted by the High Court in favour of Kukhanya (Pty)  Ltd – Gabriel Couto Joint Venture (JV) set aside.

The court order was in respect of a E287 309 debt to the JV. Other respondents in the matter are Couto SA and Construcoes Gabriel A.S Couto SA. Through its attorney, Nkosinathi Manzini from CJ Littler and Co, the company has filed an urgent application before court where it is seeking an order for the summary judgment issued on August 10, 2018 to be stayed until the matter has been finalised by the court. Manzini averred that the matter was urgent in that the respondents applied for and were granted summary judgment against the applicant prematurely which rendered the judgment of court being granted in error.

“The respondents have already caused to be issued a court order which is a clear indication that they will execute against the property of the applicant based on a judgment which was granted in error,” reads the application in part. Giving a background of the matter, Managing Director (MD) of Pots Construction, Sanele Mashwama, submitted through an affidavit with allegations whose veracity is yet to be tested by the court, that in 2014, they entered into a written sub-contract agreement with Kukhanya/Gabriel Couto JV for the construction of 10 kilometres of the road between Nhlangano and Sicunusa. He stated that when they entered into the agreement, they had to increase capacity and acquire equipment to handle the project.
To acquire the equipment needed for the project, Mashwama said they were given an advance payment of E1 060 568.18.

He explained that in terms of the sub-contract agreement, Pots had to take out an insurance cover for the advance payment, which they dully took from Lidwala Insurance Company.
Mashwama explained that in terms of the agreement between the parties, the advance payment would be repaid by Pots through deductions to be made on every certificate submitted to Kukhanya/ Gabriel Couto JV for payment in respect of work that had been carried out at every stage of the project. Further, Mashwama claimed that the Kukhanya JV made deductions on the claim certificates submitted by Pots. “The sub-contract was, however, terminated by the JV before completion of the project. At the time of termination a sum of E287 309.46 was outstanding,” Mashwama alleged.


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