Moore v Conradie

• Jurisdiction: South Africa
• Judge: Sapire AJ
• Judgment Date: 23 February 2009
• Court: Transvaal Provincial Division
• Hearing Date: 23 February 2009
• Docket Number: 23771/2003

Sapire AJ:

Although two defendants have been cited, it is common cause, that the joinder of second defendant is an error and is to be ignored. There is therefore only one defendant who will be referred to as such

2009 JDR 0115 p2

Sapire AJ

The parties entered into a written agreement on 12th September 2002 in terms of which the Plaintiff undertook to build a dwelling on a site, 21 Blue Hills Country Estate, Midrand, owned by the company cited as second defendant. This may account for the misjoinder.

The plaintiff's main claim is for payment to him by the defendant of an amount of R 189 002 14, alleged to be the unpaid portion of the contract amount (including additional work) agreed to in the building contract, in terms of which the Plaintiff built a house for the Defendant. This claim rests on the allegation that the Plaintiff "duly completed the works and additional works". The two alternative claims in lesser amounts postulate that the works were not completed, but that in the circumstances the Plaintiff was entitled to the amounts specified.

The agreement is typed on stationery bearing Plaintiffs logo. In it, the parties with reference to plans which were to be lodged with the municipality described the work to be done and the materials to be used in constructing the dwelling.

The total project price inclusive of materials, Labour and Vat at 14% was fixed at R1 100 000.

2009 JDR 0115 p3

Sapire AJ

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		1,00,000
Building	750,976	105,137	856,113
Finishes	196,831	27,556	224,387
NHBRC Levy		19,500

2009 JDR 0115 p4

Sapire AJ

Breakdown of building costs			856,113
Building	644,704	90,258	734,962
Electrical	34,005	4,761	38,766
Plumbing	48,585	6,802	55,387
	727,294	101,821	829,115
Contingencies	23,682	3,316	26,998
			856,113

Payments by Defendant
	07 Oct 02	210,000
	01 Nov 02	130,000
	27 Nov 02	230,000
	11 Dec 02	50,000
	20 Jan 03	100,000
		720,000

2009 JDR 0115 p5

Sapire AJ

Plans & Municipal Fees (Paid 26 Sept 2002)	10,440
	TOTAL PAID Prior to dispute
Total Payments by Defendant	730,440

Let's use the Plaintiff's figures
Building	727,294	101,821	829,115
Less

Municipal Plans & Fees (paid by defendant)	-10,440	-1,462	-11,902
		-
LESS Total payments by Defendant	720.000		-720.000
DUE as at 20 Jan (2 months prior to dispute)	-3,146	100,360	97,213
Add
Plaintiff Additional Work (disputed charges)	22,412	3,138	25,549
Additional agreement to the contract

2009 JDR 0115 p6

Sapire AJ

Due with FINAL payment on presentation of a Tax Invoice	19,265	103,497	122,763
Less
Plaintiff estimate of work outstanding (disputed)	-43,035	-37,750	-5,285
Due to defendant/Plaintiff	-18,485	98,212	79,728

The defendant prepared the above schedule (which ignores the Plaintiff's 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.

It is clear that the plaintiff was not registered prior to the 9th of June 2003. On that day he received a certificate of Notice of Registration issued by SARS declaring that he had been registered for Value Added Tax (VAT) as from the 1st of September 2002. The certificate was only issued after the present litigation commenced, and its production at a

2009 JDR 0115 p7

Sapire AJ

late stage occasioned a postponement of the hearing of the action. It is difficult to understand how one can register as a VAT vendor retrospectively after the contract had been concluded.

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 building it was agreed was to be completed within a period of six months from date of commencement of the operations which was early in October 2002.

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.

The Plaintiff started working on the project early in October 2002 and by March 2003 the house was, seemingly nearing completion. During the progress of the works the defendant paid the initial commencement deposit agreed upon, and further amounts from time to time totalling R 730,440. On 18th March the Plaintiff produced a list of items comprising "work still to be completed" at a cost of

2009 JDR 0115 p8

Sapire AJ

R37,750.00. He claimed in evidence that this would have taken no more than a week to do.

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, who is the engineer engaged by the Defendant, presented his report dated 25th March 2003. The defendant was furnished with a copy. From a note made on the copy of the report it appears that a meeting took place on site on that date attended by the defendant, his wife, the Plaintiff and Munday at which the report was discussed. There is no evidence that the Plaintiff seriously disputed the correctness of the report.

The report (a copy of which was to be found at page 80 of the Plaintiff's bundle of documents), records in the first place that Munday & Associates, Structural Consultants (in the person of Mr Munday) at the request of the defendant visited the property to inspect, inter alia, the reported irregularities in the tiling lines with

2009 JDR 0115 p9

Sapire AJ

reference to the as built brick walls. The object of the inspection was to identify the problems and to recommend remedial action.

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.

2009 JDR 0115 p10

Sapire AJ

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...