Bentel Abramson & Partners (Pty) Ltd v Sender NO

• Jurisdiction: South Africa
• Judge: Tsoka J, Moshidi J, Meyer AJ
• Judgment Date: 21 October 2008
• Docket Number: A5039/06
• Hearing Date: 21 September 2008
• Court: Witwatersrand Local Division

Moshidi J:

[1] INTRODUCTION:

This is an appeal, with the leave of the court below, against the whole of the judgment of Khampepe J delivered on 26 April 2006. In her judgment,

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Khampepe J found in favour of the respondent and granted absolution from the instance with costs at the end of the trial.

[2] The appellants, who described themselves in the particulars of claim as architects, duly registered in terms of the provisions of the Architectural Professional Act, 44 of 2000 ("the current Act") instituted action against the respondent. The action was for payment of the sum of R1 681 252,78 for architectural professional services rendered and disbursements allegedly incurred by the appellants for a proposed development of a project called "Pine Haven Project", on behalf of Nicholas Katonis ("the deceased") between September 1999 and December 2001. In addition, the appellants in their particulars of claim alleged that they formed an association which they described as a partnership for purposes of rendering professional architectural services for and on behalf of the deceased. The respondent was sued in his capacity as executor in the estate of the deceased who died during December 2001.

[3] The respondent in his plea, disputed the claim on numerous grounds, including the terms and conditions of the agreement allegedly concluded between the appellants and the deceased on which the action is based. In addition, in respect of the second appellant, the respondent consistently refuted that he was a properly registered architect as alleged by the appellants.

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[4] At the end of the trial, during which three witnesses had testified for the appellants, and four for the respondent, the respondent raised a so-called point in limine. The essence of the so-called point in limine was that the second appellant had not established that it was in fact a registered firm of architects so as to comply with s 22 of the Architects' Act, 35 of 1970 ("the Architects' Act"), and hence the appellants were precluded from claiming architectural fees from the respondent. The point in limine was upheld by the court below, which led to the present appeal.

[5] It is common cause that the Architects' Act, which provided for, inter alia, the registration of architects and architects in training was a predecessor to the Current Act. It is also common cause that the alleged agreement between the deceased and the appellants, which formed the subject-matter of the trial, was governed by the Architects' Act.

[6] It was the appellants' case that their partnership, as aforesaid, duly represented by the second appellant, concluded an oral agreement with the deceased for purposes of rendering architectural professional services for the deceased, relating to the realisation and development of the Pine Haven Project. The appellants, in their particulars of claim, consistently referred to the relationship between them as being a partnership.

[7] The central issue for determination in the current appeal is whether the grant of absolution from the instance by the court below based on the so-

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called point in limine was correct. It is also common cause that the court below did not pronounce on the merits of the action at all.

[8] The timing of the raising of the so-called point in limine by the respondent, that is, at the conclusion of the trial, is somewhat unusual. This is normally and procedurally raised at the commencement of a trial. I consider the point to be no more than a legal point that was raised in argument and upheld by the court below at the end of the trial.

[9] It is indeed trite law that in the court below, the appellants bore the onus of proving their claim against the respondent on a balance of probabilities. See Pillay v Krishna and Another 1946 (A) 946 at 952-953.

[10] In my view, the appellants are correct in contending that the court below erroneously relied on the earlier version of s 22 of the Architects Act in its original form and not s 22 thereof as it existed at the time of the conclusion of the contract in dispute in the present matter, that is 17 September 1999. In order to view the matter in proper context, it is useful to compare the wording of the two provisions:

10.1

The s 22 of the Architects' Act on which the court a quo relied reads as follows:

"22.

Prohibition against practicing as an architect by unregistered person. – (1) Subject to any exemption granted under this Act or the regulations,

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any person not registered as an architect in terms of any provision of section 19 who –

(a)

for gain performs any kind of work reserved for architects under section 7(3)(c); or

(b)

pretends to be or by any means whatsoever holds himself out or allows himself to be held out as an architect, or uses the name of architect or any name, title, description or symbol indicating or calculated to lead persons to infer that he is registered as an architect in terms of this Act,

shall be guilty of an offence and liable on conviction to a fine not exceeding five hundred rand."

10.2

By contrast, s 22 of the Architects' Act in its amended form reads as follows:

"22.

Prohibition against practising as an architect by unregistered person. – (1) Subject to any exemption granted under this Act, any person not registered as an architect and who –

(a)

except in the service or by order of and under the supervision of an architect, performs for reward any kind of work reserved for architects under section 7(3)(c); or

(b)

pretends to be or by any means whatsoever holds himself out or allows himself to be held out as an architect, or uses a name of architect or any name, title, description or symbol or performs any act indicating or calculated to lead persons to infer that he is registered as an architect in terms of this Act,

shall be guilty of an offence and liable on conviction to a fine not exceeding R10 000,00."

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[11] It is plain that the difference between the wording contained in the original s 22 of the Architects' Act and its amended form is of no significance and is not material. What is, however, of importance is that in both versions, it is a criminal offence for an unregistered person to perform architectural work for gain or reward, and that a heavy fine is imposed for such transgression. The reasoning of the court below, makes it clear, in my view that the same conclusion would have been reached even had the court below relied on the correct legislative instrument, the outcome of the case would have been the same. The crucial issue remains, however, whether in the light of the criminal sanction applicable to the second appellant, the appellants are, in any event, entitled to the claim for professional services rendered. In the instant matter, a penalty of R10 000,00 can be imposed on an unregistered architect who performs work for reward. The respondent does not deny the registration of the first appellant as an architect. It is the registration of the second appellant which has not been proved.

[12] In an attempt to ascertain the true intention of the Legislature, it is instructive to consider the Act as a whole, its object and provisions. See in this regard Da Silva and Another v Coutinho 1971 (3) SA 123 (A) at 138. This process undoubtedly entails a question of interpretation.

[13] I now proceed to apply the above principles to the present matter. It is plain that the Architects' Act does not contain a provision prohibiting unregistered architects from recovering fees and disbursements for professional services. The preamble to the Architects' Act states as follows:

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