Fearing attachment of its assets to offset an outstanding P13.7 million debt against Estate Construction, Kweneng District Council (KwDC), has moved fast and won a stay of execution against a judgment delivered last week. On Friday the High court suspended the enforcement of the judgment pending an appeal filed by the embattled municipality, after it filed an urgent application to prevent Estate from attaching and auctioning its assets. Last week High Court judge Kabelo Lebotse ordered KwDC to pay Estate Construction (Pty) Ltd P13.7 million (P13 662 742.20) plus interest on the amount at the rate of 3% above the bank lending rate compounded monthly from 18th June 2016 to the date of final payment, being outstanding fees for the construction of the Molepolole Bus Terminal. But Estate lawyer, Tshiamo Motsumi, insists that his client had no plans to attach and auction KwDC property. In their grounds of appeal KwDC argues that Justice Lebotse misdirected himself in granting a summary judgment notwithstanding glaring defects which include disparity in the amount claimed. "The judge grossly erred and misdirected himself in holding that the amendment of (Estate's) declaration cured all defects in their application. He erred in holding that their claim was based on a liquid document," argues attorney Ricardo Seabueng, representing KwDC. The amendment referred to was a minor application by Estate to reduce their claim from the original P18 million (P17.976 734.02) to P13.7 million after KwDC paid P4.3 million on March 21, 2017 before the case was heard in June.
Contending that Estate did not comply with the rules of the high court in their initial summary judgment application, KwDC lawyer submits that Justice Lebotse fell into a grave error and misdirected himself by totally disregarding the uncontroverted evidence that Estate had previously over-claimed and therefore its claim should have been reduced accordingly. "The judge erred and misdirected himself in holding that a payment certificate is infallible, cannot be adjusted or varied and that KwDC cannot challenge its validity. He erred in disregarding the parties' agreement to re-measure the quantity works. He misdirected himself in holding that KwDC does not have a bona fide defence to Estate's claim," argues Seabueng in papers filed in court last Friday. Estate is opposing the appeal but is yet to file a response. The matter is expected to heard at the Court of Appeal in 2018, possibly in the April or July session.