Claasen v African Batignolles Construction (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Brink J
• Judgment Date: 31 December 1953
• Citation: 1954 (1) SA 552 (O)
• Court: Orange Free State Provincial Division

Brink, J.:

Plaintiff who is the registered owner of an erf at the corner F of Fullard and Koller Streets, Kroonstad, on which a dwelling-house is situated, entered into a written contract of lease with African Batignolles (Pty.) Ltd. The lease was signed by plaintiff at Kroonstad on the 12th April, 1949, and by G. Henry-Haye on behalf of defendant Company at Johannesburg on the 27th May, 1949. Under the contract of lease plaintiff let to defendant the erf above referred to, with buildings thereon, subject to certain terms which are fully set out in G the contract of lease annexed to the declaration. The original lease was put in at the trial and is referred to as exhibit B. The period of the lease was from the 8th April, 1949, to 7th January, 1950, with a right of renewal for a further period of 9 months, subject to the same terms and conditions. The rent agreed upon was £40 per month. Clause 5 of the lease provides as follows:

'The lessee shall, during his tenancy, keep in good repair all buildings, window panes, water taps, electric switches and wires, also H maintain and keep the garden and/or yard with any trees, etc. therein, in the same good order and condition in which they are at present, and shall deliver the same in a state of good order and cleanliness at the expiration of this lease.'

Clause 11 of the lease provides:

'It is a special condition of this lease that the lessee undertakes, at its own expense and risk, to forthwith effect the alterations and additions to the groundfloor

Brink J

of the dwelling-house in terms of the letter addressed to the lessee by the Kroonstad Board of Executors and Trust Co. Ltd., dated the 8th of April, 1949 (copy annexed hereto). Any improvements made to the property shall become the property of the lessor at the expiration of this lease without any compensation being paid by the lessor as due allowance was made therefore in the rental charged and payable under this lease.'

The letter referred to provides in clause 1 thereof:

'Your Company will be responsible immediately for fixing up the groundfloor, at its own A expense, as follows:

(a)

Break in doorways and windows;

(b)

Removing all soil in the rooms;

(c)

Supplying and fixing jambs with doors and steel windows complete;

(d)

Plastering all walls and ceilings;

(e)

Laying 4" concrete floors and supplying and fixing woodblocks;

(f)

Supplying and fitting extra handbasin and two showers in B bathroom with sewerage;

(g)

Colourwash and paint inside;

(h)

Installing electric light;

(i)

Supplying and fitting windows to open porch.'

The letter goes on to state:

'It is a special condition that your Company will carry out the alterations and additions referred to in clause I strictly in accordance C with the building regulations of the Kroonstad Municipality.'

The letter further mentions that it will be necessary to obtain a permit from the Building Controller, Bloemfontein, to allow the alterations and additions referred to in clause 1 to be carried out and that the owners would obtain the permit. There is a post-script to the letter to the effect that in the event of the permit referred to not being obtained, D the defendant agreed to hire the property as it stood at a monthly rental of £50.

In his declaration as amended in terms of the notices to amend, dated the 24th August and 13th November, 1930, plaintiff makes the following claims:

E 1. (a) The sum of £632 being damages for breach of contract sustained as the result of defendant's failure to carry out the alterations and additions referred to in para. 11 of the lease, which are averred in para. 6 of the declaration. In further particulars dated 13th November, 1950, plaintiff furnishes details of the work which defendant failed to complete. He also alleges that he obtained the necessary permit from the building controller and performed all other obligations imposed on him by the said agreement.

F 1. (b) The sum of £60 9s. 0d. as damages for breach of clause 5 of the agreement in that defendant failed at the termination of the lease to deliver the first floor and yard to plaintiff in a state of cleanliness and good order and repair.

1. (c) The sum of £500 as damages sustained by plaintiff as alleged in para. 13 of the declaration which reads:

G 'During or about April, 1949, defendant made certain openings in the walls of the ground-floor of the said building, and thereafter for a period of at least two months negligently failed to cast lintels across the said openings or otherwise to support the said walls where the openings were made with the result that cracks appeared in the walls of the said building. As a direct result of the said cracks plaintiff has suffered damages in an amount of £500 being the difference in market value of the said house with and without the said cracks.'

H 2. Plaintiff also claims an amount of £120 as damages for loss of rentals as a result of defendant's failure to effect the said alterations and additions to the said building before the termination of the lease, with the result that it was uninhabitable for a period of 3 months which was necessary for the completion of the alterations and additions.

To these claims defendant in its plea as amended, raised the following defences:

Brink J

Defendant admits that the agreement of lease above referred to was signed by the parties but pleads that the agreement was not binding in law, or alternatively, that para. 11 thereof was not binding in law, either because the agreement as such or the said para. 11 was void ab origine in that it was an illegal contract being contrary to the Building Regulations of the Kroonstad Municipality as duly promulgated in the Official Gazette of the O.F.S., No. 33 of 1939, dated 8th March, A 1939. Particulars are given as follows:

(i) If defendant had carried out the work stipulated in para. 11 of the lease, it would have been guilty of a breach of the said regulations in that it would have illegally converted a building which had been built and designed as a single-storey dwelling into a double-storey dwelling.

B (ii) By carrying out the work as stipulated in para. 11, three rooms on the ground floor would have had a height of less than 9 feet, which is the minimum height required by the said regulations, and in addition the floors of the ground floor rooms would in contravention of the regulations, be below the ground level.

C (iii) The ground floor walls would only have been 9 inches thick, whereas the regulations require a minimum thickness of 14 inches.

(iv) The building was let to be used for the purposes of a public building to the defendant, and plaintiff was not at the time of the lease and of giving occupation to defendant in possession of a certificate granted in terms of clause 260 of the Kroonstad Building Regulations.

D As a defence to the claim based on the breach of clause 5 of the lease, defendant denies that plaintiff delivered the first floor or the yard in a state of cleanliness and good order and repair to defendant, and denies further that plaintiff suffered any damage or that defendant committed any breach of contract. As to the defence to claim 1 (c) of the declaration, based on the cracks in the walls, defendant denies that such cracks appeared in the building or that plaintiff suffered any damage. It also raises other defences with which I shall deal when I E discuss this claim.

As a defence to claim 2 based on the loss of rentals owing to defendant's failure to complete the alterations and additions prior to the termination of the lease, defendant pleaded that for the reasons set out above no agreement of lease existed between the parties and accordingly defendant was not bound to make any alterations and F additions to the said building. It denies further that it committed any breach of contract and that plaintiff suffered any damages at all.

As an alternative plea defendant alleges that it was induced to enter into the said contract of lease as a result of false and fraudulent misrepresentations made by the plaintiff, viz.:

(a) That the dwelling-house which the defendant had to convert from a single-storey into a double-storey building had been designed and built as a double-storey building in terms of the Kroonstad Municipal Building Regulations. G

(b) The rooms on the ground floor were constructed to be of a minimum height of 9 feet as required by the regulations.

(c) The foundations went down more than 9 feet from the ceiling of the H ground-floor rooms and that defendant could therefore safely remove the soil from the ground-floor rooms.

(d) The walls of the rooms were of a minimum thickness of 14 inches as required by the regulations and that accordingly,

(e) only minor alterations were necessary to convert the said building from a single-storey dwelling into a double-storey dwelling.

Brink J

Defendant alleges that the representations referred to were false to the knowledge of plaintiff and that defendant, relying on the truth of them, was induced to enter into the contract; that defendant, as it was entitled to do, resiled from the said contract and did not complete the said alterations nor is it liable for any cracks as a result of operations commenced and carried on as a result of plaintiff's alleged A false representations. The replication was a general denial.

[The learned Judge proceeded to analyse the evidence on the alleged false representation and concluded.]

So far then as the defence based on misrepresentation is concerned, there is no evidence to support it and it must fail.

The main defence to the action is that the contract entered into between B the parties was void ab origine because its execution involved contraventions of the building regulations of the Kroonstad Municipality. Sec. 48 of the regulations provides as follows:

'No owner or person shall...