National Homebuilders Registration Council v Megnath

• Jurisdiction: South Africa
• Judge: Lopes J
• Judgment Date: 15 November 2013
• Docket Number: 7133/2013
• Hearing Date: 12 November 2013
• Court: KwaZulu-Natal High Court, Durban

Lopes J:

[1]

In this action the excipient has taken exception to the first respondent's particulars of claim. The first respondent, Yashin Megnath, as plaintiff, instituted action against Attic Builders & Contractors t/a Attic Rooms as the first defendant, and National Homebuilders Registration Council as the second defendant. I shall refer to the parties as 'Megnath', 'Attic Builders' and 'the Builders' Council' respectively.

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Lopes J

[2]

Megnath decided to build a new home. On the 11th June 2012 he concluded a written agreement with Attic Builders. Attic Builders was a registered builder with the Builders' Council in terms of the provisions of the Housing Consumers' Protection Measures Act, 1998 ('the Act'). On the 31st May 2012 Megnath had paid an enrolment fee of R17 369 to the Builders' Council, and his prospective new home was enrolled in terms of s 14(1) of the Act. As work progressed, various amounts were paid to Attic Builders who, prior to completing the building work, abandoned the site, thereby repudiating the agreement which it had concluded with Megnath.

[3]

Megnath suffered loss and damage in the sum of R158 337,00 because Attic Builders failed to provide building services to the value of the payments which had been made to it by Megnath. In addition Megnath was required to employ a third party to rectify the defective work which had been performed by Attic Builders in the sum of R206 910, which Megnath also claims from Attic Builders.

[4]

Megnath also alleged in his particulars of claim that as Attic Builders was unable to meet its obligations as contemplated in terms of s 17(1)(d) of the Act, the Builders' Council became liable to pay Megnath's rectification costs in the sum of R206 910.

[5]

The Builders' Council has excepted to the claim of Megnath on the following bases :

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Lopes J

(a)

that the provisions of s 17(1)(a) – (e) are to be conjunctively interpreted and do not stand alone. A claimant under that section must therefore satisfy all the requirements of those sub-sections (save those which are inapplicable) and plead the facts underlying the conclusions arrived at in order to render the Builders' Council liable under the section;

(b)

Megnath cannot rely on only one of the sub-sections of s 17(1)(a) – (e) as he had purported to do by relying on subsec 17(1)(d) alone;

(c)

alternatively to the aforegoing and in the event that the provisions of s 17(1) are to be construed disjunctively, Megnath has not pleaded that a major structural defect manifested itself after his initial occupation of the premises, and in the absence of such an allegation, and proof thereof, Megnath has no cause of action against the Builders' Council;

(d)

this envisages proof of two aspects :

(i)

that the claim must be for major structural defects; and

(ii)

only 'post-occupation defects' are covered by the Act;

(e)

in his particulars of claim Megnath has not pleaded that he has satisfied the other requirements of the Act and in particular Rule 28(1) of the rules promulgated pursuant to s 7 of the Act, and in the absence of demonstrating that he has satisfied the requirements of rule 28, he has no claim. Rule 28 deals with the Builders' Council's requirements for the payment for rectification, including the finalisation of a report by the Builders' Council. It is common cause that such a report has not been finalised.

[6]

It is common cause between the parties that Megnath was not in occupation of the premises at the time the action against Attic Builders and the Builders' Council

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Lopes J

was instituted. Mr Thomas who appears for Megnath, accepts that in the event that I should hold that the proper construction of s 17(1) applies only to post-occupation defects, his claim against the Builders' Council must fail.

[7]

My decision will therefore require an interpretation of the various sections of the Act. In Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) Wallis JA dealt with the developments in our law relating to the interpretation of documents and at page 603 F he stated :

'The present state of the law can be expressed as follows : Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and...