IN THE HIGH COURT OF SOUTH AFRICA
		TRANSVAAL PROVINCIAL DIVISION

MOORE, DOUGLAS

Plaintiff
V
CONRADIE,  CARL FRANCIS
FIRST DEFENDANT
			SNAKES NEST HOLDINGS 12 (PTY) LTD
Second Defendant

			Case No 23771 /2003

Civil trial 

JUDGMENT

			Monday, 23 February 2009

The total project price inclusive of materials, Labour and Vat at 14% was fixed at Rl 100 000.
Some items were to be provided and paid for by the defendant who also made disbursements for items included in the specification of the works. In so far as this was done they were to be excluded from the contract price Provision was made for the payment of draws periodically during the progress of the work as indicated in a schedule attached to the agreement.

In giving evidence the defendant produced a summary of the disputed calculations of the amount claimed by the Plaintiff in these proceedings. (Exhibit F)
					
		PRICE	VAT	TOTAL	
	Total Contract			1,100,000	
	Building	750,976  	105,137	856,113	
	Finishes	196,831	27,556	224,387	
	NHBRC Levy			19,500	
		947,807 	132,693	1,100,000	

	

Breakdown of building costs			856,113	
Building  	644,704	90,258		
Electrical 	34,005	4,761	38,766	
Plumbing  	48,585	6,802	55,387	
			829,115	

Contingencies	23,682 	3,316  		
			856,113	

Payments by Defendant

TOTAL PAID Prior to

Let's use the Plaintiffs figures

Less

DUE as at 20 Jan (2 months prior to

Add
Plaintiff Additional Work

Additional agreement to the contract
Due with FINAL payment on presentation of a Tax Invoice

Less

The defendant prepared the above schedule (which ignores the Plaintiffs alleged serious breach in failing to erect the dwelling according to plan in a proper and workmanlike manner) to demonstrate the balance if any owing on the contract taking into account a dispute as to whether VAT was to be included or not. The contract price included VAT but the defendant maintains that the plaintiff was not a registered VAT vendor and accordingly was not entitled to demand or receive VAT.

No VAT invoices were discovered or produced There remains a considerable doubt as to whether VAT was payable in respect of the transaction and whether the plaintiff was entitled and obliged to recover VAT from the vendor. In view of the conclusion to which I later came this question does not have to be decided.

The agreement did not have the detailed provisions which are contained in the standard building contract, and although one Simon Knutton was appointed to supervise the work in terms of the National Building Regulations there is no evidence of him having played any significant part in the overseeing the construction of the house. No architect was engaged by the Defendant.

Relations between the parties remained amicable until at an advanced stage of the building the issues now before the court arose. The change came about when the Defendant received a report from an engineer who he had asked to inspect the still uncompleted building to confirm or allay his misgivings about the standard of workmanship the plaintiff was demonstrating in the construction of the dwelling. The plaintiff had been referred to the engineer by his bank as Simon Knutton was not immediately available.

Mr Munday's observations were On initial inspection it appeared that certain of the brick walls had not been constructed with 90-degree angles. For clarification the site was revisited and Munday took extensive measurements of the critical areas

The main areas in contention were plotted out and the findings are demonstrated on drawings nos 3477-1 and 2 which were like this report later discovered and later produced in evidence..
From the drawings it is clear that there had been a problem with the initial setting out of of the building and that the tiler had attempted to compensate for the irregularities

By and large the tiler had been relatively successful under the circumstances but the misalignment of the building was extremely noticeable in the passage area and the living/kitchen area.
The plastering of some of the internal walls was not straight and out of plumb.
The side flashings had been incorrectly installed
Relating to the incorrect setting out Munday noticed that the roof tiles in the vicinity of the kitchen were running out of line and had been cut in an unsightly manner

The ridge pointing was cracked and loose and thus not waterproof

Other defects were noted but were of less importance than the incorrect setting out of the building.

The conclusion reached was that the elimination of the errors arising from the incorrect setting out of the building could not be achieved without demolition but measures could be taken to lessen the unsightly effects.

The contents of the report are the basis on which the Defendant has resisted Plaintiffs claim, and of the counterclaim which the Defendant has made against the Plaintiff.

The Plaintiff did not deal with the report. If Munday's findings were correct, the plaintiff was not entitled to claim payment of any moneys at that time notwithstanding this the plaintiff persisted in his attitude and eventually decamped from the site and left the house uncompleted. No steps were taken to remedy the defects which were listed in the Munday report. It is the plaintiff therefore who was in breach of the contract and is not entitled to payment of the contract price and must fail on his main claim.

The evidence is that the plaintiff spent considerable amount of money on work to the dwelling after the plaintiffs departure from the site, and the defendant is in occupation and clearly accepted the work done by the plaintiff. But that in itself does not entitle the plaintiff to the amounts he claims in the alternative.

John Munday was called by the defendant as an expert and he testified confirming his report and amplified. His evidence was impressive and the plaintiff did not attempt to counter it.

The expert called by the defendant, Prof Botha, was a quantity surveyor and it was not in his field of expertise to give an opinion contrary to that of Mr Munday. On the question of the setting out of the building the experts met and Prof Botha said that if the measurements taken by Munday were correct the walls deviated excessively from the standards acquired by the NHBRC.
Prof Botha insofar as he remained within his field of expertise was also an impressive witness and his opinions are acceptable. He however cannot gain say the evidence of Mr John Munday.

The evidence of the defendant's expert establishes beyond doubt that the works were never commence in accordance with the plans and that they were certainly not completed. John Munday also testified to a number of aspects in which the Plaintiffs performance of his obligations fell significantly short of what was required.

The Plaintiff repeated in court that he refused to complete the building or to carry out any work to eliminate any faults which have been found unless and until the defendant had deposited the amount which he claimed as the balance of the purchase price. There was no provision in the agreement entitling him to do so and in view of the serious defects in the building he was not then or now entitled to payment of the balance of the purchase price or to demand security in respect thereof. His refusal and subsequent departure from the site placed him in clear breach entitling the defendant to cancel.
The question remains whether the plaintiff is entitled to payment of the amounts claimed in the alternative. The law pertinence to this question is discussed and clarified in BK Tooling (Edms) Bpk v Scope
Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A), from the headnote of which this extract is instructive
If the contractor does not succeed in convincing the Court that the has fully complied with his side (of the contract), and he wishes then to claim a reduced contract price, he will have to prove:

In regard to possible consequential damages (caused by the shortcoming) already suffered and possible damages as the result of the mora of the contractor, the onus of proof will, on the grounds of general principles, still have to rest on the employer. The employer will, probably, have to institute a counter-claim.

The facts in this case do not permit me to exercise any discretion in favour of the plaintiff. Although the employer is utilising the incomplete performance there is no evidence to show that the cost of rectifying the defects would be and it is not possible to determine by how much the contract price could be reduced. The evidence moreover indicates that it was the Plaintiff who was in breach and who abandoned the works before completion and rectification.
The plaintiff must therefore fail in both the main and alternative claims.
The counterclaims were not substantiated by sufficient evidence to enable me to determine the amount if any to be awarded to the defendant. Although the defendant testified to having purchased building supplies and materials and produced a schedule thereof there is nothing to show what he actually did or whether what he did was necessary to remedy the effects and to bring the property to a condition where it approximated to what it should have been had the contract been fulfilled and there is nothing to indicate that the amounts specified were reasonable. It is true that John Munday ventured out of his field of expertise and suggested that the costs of doing the remedial work which he had mentioned in his report would be something in the vicinity of R200 000,00. This, however, was merely a guess and admittedly not an expert opinion.

The defendant's counsel suggested that 'it was possible to take a robust approach and do the best I could". Such an approach can only be adopted where the party claiming damages has done whatever it could to place evidence before the court on which such an award could be made.
The robust approach set out in Hersman v Shapirol926 TPD 367 by Stratford J, with whom Tindall J concurred (at 379 - 380), is this:
Monetary damage having been suffered, it is necessary for the Court to assess the amount and make the best use it can of the evidence before it. There are cases where the
assessment by the Court is very little more than an estimate; but even so, if it is certain that pecuniary damage has I been suffered, the Court is bound to award damages. It is not so bound in the case where evidence is available to the plaintiff which he has not produced; in those circumstances the Court is justified in giving, and does give, absolution from the instance. But where the best evidence available has been produced, though it is not entirely of a conclusive character and does not permit of a mathematical calculation of the damages suffered, still, if it is the best evidence available, the Court must use it and arrive at a conclusion based upon it.

In this case however the defendant has not properly described quantified and costed the work which he did and shown it on expert evidence to have been reasonable and necessary to place the dwelling in the condition it should have been had the contract been properly performed.

There is also the claim of R40 000,00 for accommodation. There is nothing to show why the house could not be occupied for that period and that the rental actually spent was both reasonable and necessary. Because of this the defendant cannot succeed on his counterclaim.

The outcome therefore is that the plaintiffs claim is dismissed and that the plaintiff is absolved from the instance in respect of the defendant's counterclaim.

As to costs neither party has succeeded in respect of their claims and accordingly the unsuccessful party will have to bear the costs of the successful party in respect thereof.

I therefore order:

1. Plaintiffs claim is dismissed with costs;

2. Plaintiff is absolved from the instance with costs in respect of the defendant's counterclaim.