A company that provides spray injected patching of potholes in South Africa through the use of a machine called a Jetpatcher, has been sued for R3 million by a civils contractor that lost a contract with the Drakenstein municipality because the Jetpatcher’s cold emulsion did not seal properly and was not waterproof.
The civils company, Delcon Solar (Pty) Ltd, purchased a refurbished Jetpatcher, a spray injected patcher, from Inyathi Environmental Technologies (Pty) Ltd for R2.074 million to reseal micro-trenches after installation of fibre cables, after being assured by the Inyathi salesman that the Jetpatcher was perfect for the job.
But during the demonstration held for the municipality, the cold bitumen emulsion and asphalt aggregate mix produced and sprayed by the Jetpatcher did not cure within 48 hours. In fact, three weeks after the resealing work was done, it was possible to scrape the coating off using just a fingernail. Water also penetrated right through it as fast as it was poured onto the surface.
The Jetpatcher is supposed to provide a way of maintaining wearing surfaces of asphalt roads, micro-trenches and potholes through spray injecting a bitumen emulsion and aggregate gravel mix into the hole or trench which according to Inyathi, then ‘cures’ within 48 hours.
Johan Muller, an independent engineering consultant who is acting as expert witness in the case explained that bitumen emulsions don’t cure or harden like hot-mix asphalt and that they soften as temperatures increase. He stated in his report that the single-sized aggregate used with the Jetpatcher technology will be more difficult to place with success in the narrow micro-trenches used for fibre cables- it is vastly different to the continuously graded hot-mix asphalt specified by the Drakenstein municipality.
He added that the Jetpatcher will not provide a consistently acceptable product when a micro-trench has a slope or where it is applied in a thicker layer or on a very rainy day.
“The Jetpatcher concept was not fit for the intended purpose in this instance,” Muller wrote.
Delcon Solar said it had received the assurance from representatives of Inyathi Environmental Technologies prior to purchasing the Jetpatcher, that the machine, as well as the KRS 65 bitumen emulsion mixed with gravel which it sprays, were suitable for Delcon’s business purposes.
Shortly after the Jetpatcher, Inyathi Environmental Technologies’s staff conducted a road resurfacing demonstration in the presence of engineers of the Drakenstein municipality, who had insisted on a demo before allowing Delcon Solar to use the Jetpatcher for reinstatement of fibre micro-trenches- a contract which was worth R898 500,00 to Delcon Solar.
But the Jetpatcher did not pass the test as the emulsion mix failed to harden within 48 hours. In fact, weeks after the application of the emulsion, the road and pavement surface remained soft. Consequently, Delcon Solar was not awarded the reinstatement contract with the Drakenstein municipality.
Delcon Solar subsequently offered to return the Jetpatcher to Inyathi Environmental Technologies and claimed repayment of the R2.074 million purchase price and their loss of profits of R898 500.
Inyathi Environmental Technologies has steadfastly refused to take back the Jetpatcher, refund Delcon Solar and, despite being invited to do so, has failed to produce an alternative emulsion mix formula to solve the problem. The pre-trial hearing of the case will take place at the Cape High Court on 11th March 2024.
Trudie Broekmann, a South African expert in consumer law who represents Delcon Solar, said section 61 of the Consumer Protection Act makes suppliers liable for damages when their product causes harm due to a product failure. The duty to pay damages applies to the supplier even when the supplier was not negligent and even when it is impossible to prove that the supplier acted wrongfully.
The distributor of the Jetpatcher is liable to the civils company for any damage, including a loss of value in the Jetpatcher when it becomes evident it does not work. Furthermore, Broekmann says that Inyathi is liable based on a breach of their warranty given to Delcon, as well as misrepresentation regarding the ability of the Jetpatcher to successfully conduct reinstatement of micro-trenches.