Demont v Akals' Investments (Pty) Ltd and Another

• Jurisdiction: South Africa
• Court: Durban and Coast Local Division
• Judge: Selke J
• Judgment Date: 08 January 1955
• Citation: 1955 (2) SA 312 (N)

A Selke, J.:

In this case the plaintiff, Rose Demont, sues the defendants jointly and severally for £1,028 15s. 7d. Her cause of action, so far as now material, is, in outline, that she is the owner of a certain property known as 288, Stamford Hill Road in Durban, upon which stands a dwelling-house; that the first defendant is, and was at all material B times, the owner of a piece of land next to 288, Stamford Hill Road; that the first defendant employed the second defendant to construct a building on the first defendant's said land, which the second defendant proceeded to do, during and after the month of July 1952; and that, in the course of making excavations for that building, the second defendant removed earth from the vicinity of the plaintiff's dwelling-house and C negligently deprived it of lateral support to which it was entitled from the first defendant's land; that, as a result, the foundations of the plaintiff's house subsided, the walls cracked and the building was condemned by the Durban Corporation and became a total loss, with the consequence that the plaintiff suffered the damage claimed for in this action.

D The defendants, while admitting in their pleas that the plaintiff was the owner of the property known as 288, Stamford Hill Road; that the first defendant was the owner of the adjacent property, and that the second defendant had made excavations thereon for the purpose of erecting a building for the first defendant, each filed a plea in bar to the effect that, on or about the 28th July, 1952, the plaintiff, E personally, and one Smellie (therein representing both the defendants), entered into a verbal contract in terms of a certain 'release' document of that date and that, in terms of this contract, the plaintiff, in consideration of a payment of £300 to her, released and discharged the defendants from, inter alia, the cause of action relied on in the F present action, and they accordingly claimed judgment in their favour with costs.

It is the plea in bar only with which this judgment is now concerned, and, for the purpose of putting the Court in a position to deal with it and to construe the so-called 'release' in the light of the circumstances in which it was made, a good deal of evidence was led. A G copy of the 'release' was annexed to particulars of the declaration furnished to the defendants by the plaintiff's attorneys, and the original was put in at the hearing before me. It bears date the 28th July, 1952 (not 1953), and the document reads as follows:

'In consideration of payment to me of the sum of three hundred pounds (£300) receipt of which I hereby acknowledge, I, Rose Demont, married out of community of property to Lawson Champion Demont, and by him herein assisted in so far as may be necessary, do hereby release and for ever discharge for myself and my heirs, executors, administrators and H assigns, Rush & Tompkins (S.A.) (Pty.) Ltd. and Akal's Investments (Pty.) Ltd., from any and all claims, demand, damages, actions and causes of action, arising from any works carried out and/or to be carried out in respect of excavations and/or laying of foundations and/or erection of buildings on the property of the said Akal's Investments (Pty.) Ltd., adjacent to certain houses belonging to me, and situate at Nos. 288/290 Stamford Hill Road, Durban.'

Selke J

I think there is no doubt that much of the evidence to which I...