Drafting Heads of Argument — Magistrates' Court

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Candidate Attorney

Scenario

PARTIES Applicant: Johannes Mokoena, owner of Erf 812 Ferndale, Randburg, valued R3.4m. Respondent: Sipho Construction CC (Reg 2019/117884/23), sole member Mr S. Mahlangu, based in Roodepoort. CONTRACT On 4 February 2026 the parties concluded a JBCC Minor Works Agreement (Ed 5.2) for construction of a double-storey extension for a contract sum of R1,180,000 (VAT incl). Practical completion: 30 June 2026. Progress payments monthly against Principal Agent certificates (Principal Agent: Nkosi Architects, Ms T. Nkosi Pr Arch 8721/2019). Clause 8.3 prohibits deviation from approved SANS 10400 building plans without written variation instruction. Clause 16 provides for adjudication and, failing that, arbitration under AFSA rules. THE DISPUTE Between 8 and 12 May 2026 Sipho Construction excavated a 2.6m deep trench along the western boundary to install a swimming-pool retention wall — an item NOT on the approved plans and NOT covered by any written variation. Applicants neighbour, Dr Anele Radebe, has already served a s24 NEMA complaint on the Johannesburg Roads Agency alleging destabilisation of the shared boundary wall. Applicants engineer (Mr B. Steyn Pr Eng, report annexed) states risk of collapse is imminent, within 14 days if rainfall exceeds 20mm. RELIEF SOUGHT 1. An interim interdict restraining Respondent from continuing any works pending arbitration. 2. An order compelling Respondent to backfill the trench and restore lateral support within 5 days. 3. Costs on the attorney-and-client scale. RESPONDENTS ANSWER Respondent denies breach. Contends Applicant repudiated the contract by failing to pay Progress Payment 3 (R187,320) within the 7-day period stipulated in clause 25.1, and that the pool wall was a necessary consequential work verbally instructed by the Principal Agent on site on 6 May. URGENCY Set down as an urgent application in the Randburg Magistrates Court, Wednesday 27 May at 09h00, before Magistrate Molefe. Judgment reserved to Friday 29 May. AUTHORITIES YOU MUST CONSIDER Setlogelo v Setlogelo 1914 AD 221 (requisites for interim interdict); Plascon-Evans Paints v Van Riebeeck Paints 1984 (3) SA 623 (A) (motion proceedings on disputes of fact); Eriksen Motors v Protea Motors 1973 (3) SA 685 (A); National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC) (irreparable harm); Magistrates Courts Act 32 of 1944 s30 (interdicts); Uniform Rule 6(12) (urgency principles adopted by analogy); JBCC Minor Works Ed 5.2 clauses 8, 16, 25.