OK Bazaars (1929) Ltd and Others v Stern and Ekermans

• Jurisdiction: South Africa
• Judge: Watermeyer J and Steyn J
• Judgment Date: 11 February 1976
• Citation: 1976 (2) SA 521 (C)
• Court: Cape Provincial Division

Watermeyer, J.:

The question to be decided in this case is the validity, or otherwise, of three exceptions taken to an alternative defence in a plea and to two third party notices issued in terms of Rule of Court 13 (1).

Watermeyer J

In order to understand the exceptions it is necessary to refer to the pleadings in some detail.

The plaintiff, O.K. Bazaars (1929) Ltd., sues the defendant, a firm of land surveyors, for damages in the sum of R7 985,02. In A para. 3 of its particulars of claim plaintiff alleges that it was the developer of certain immovable property situated in Pearl. In para. 4 (a) it alleges that in or about November 1963 it, represented by its duly authorised agents, Messrs. Honikman, Greshoff and Associates, a firm of architects, 'instructed' the defendant to survey the property B by the preparation of a site diagram to show the levels and indicate the set-back lines on the said property in order to determine the correct boundaries and site limits thereof.

In para. 4 (b) plaintiff says that defendant 'accepted' the said instruction and duly commenced preliminary work on the said survey. From the further particulars supplied it appears that defendant in fact completed this work by preparing a site C diagram, showing the set-back lines, which it delivered to plaintiff on 29 January 1964. Furthermore plaintiff concedes that this diagram was correct in all respects, including the set-back lines.

In para. 4 (c) plaintiff alleges that on or about 3 June 1970 defendant was instructed to proceed with the preparation of a further up-to-date site diagram'. Plaintiff then alleges in para. 5 that it was an implied term of the said 'agreement' and 'instruction' that:

(i)

D defendant would exercise due care and skill in the performance of its obligations,

(ii)

defendant would make all such enquiries as were necessary to enable it to prepare a site diagram which, inter alia, reflected the correct boundaries to the said property,

(iii)

E defendant would reflect on the said diagram the pegs and/or beacons in their correct positions.

Before proceeding to set out the further allegations I pause here to point out that what is alleged in para. 4 (a) is an 'instruction' given to defendant in 1963 to do the survey, F which 'instruction' it is alleged in para. 4 (b) was 'accepted' by defendant. In contradistinction to the above, what is alleged in para. 4 (c) is that defendant was in 1970 'instructed' to prepare a further up-to-date diagram, but there is no similar allegation that this instruction was accepted by defendant.

Defendant filed a request for further particulars to para. 5 G which reads as follows:

'It is not clear which is the said agreement and instruction which contained the implied term alleged. In particular is it alleged that the implied term was contained in:

(a)

the agreement constituted by the instruction referred to in para. 4 (a) - as accepted by defendant as alleged in para. 4 (b) - and

(b)

in the instruction referred to in para. 4 (c).'

H To this request plaintiff replied as follows:

'Plaintiff avers that the said implied term relates to the agreement and all the instructions given in para. 4, and in particular to the instruction given in para. 4 (c).'

Proceeding then with the particulars of claim, plaintiff alleges in para. 6 that 'in breach of its said obligations' defendant failed to set out the correct boundaries in that it reflected on the site diagram pegs and/or beacons in incorrect positions and relating to the old boundary site, and failed to reflect

Watermeyer J

or to have any regard to a subsequent second road widening scheme approved in and during 1964.

Then follows para. 7 (a) in which plaintiff alleges that on or about 14 May 1971 defendant was 'instructed' to point out to the contractor all the pegs necessary for the setting out of A the works, and in para. 7 (b) that defendant thereupon pointed out the pegs incorrectly placed and reflected on the site diagram prepared by defendant, and that the works were accordingly set out on the basis of such pointing out by and/or site diagram of defendant.

In para. 8 plaintiff alleges that by reason of defendant's 'conduct aforesaid' the building, then in course of erection, had been set out 7' 9" too far forward, and in para. 9 that as B a result of defendant's 'said conduct' plaintiff has suffered damages in the sum of R7 985,02, which sum plaintiff thereupon claimed from defendant.

To the particulars of claim defendant filed a plea. I do not intend to set out the allegations in the plea in any great detail because the validity of the exceptions turns basically on a construction of the particulars of claim. There are, C however, certain allegations to which I must refer. Save for certain qualifications which are not now relevant, the defendant admitted the 'instruction' given in 1963 (para. 4 (a) of the particulars), the 'acceptance' thereof (para. 4 (b) of the particulars) and the 'instruction' given in 1970 (para. 4 (c) of the particulars).

With regard to para. 5 of the particulars defendant pleaded D (para. 4 (a) of the plea) that in so far as the 'agreement' in para. 4 (a) of the particulars is concerned defendant admits E the implied terms set out in para. 5 (i), but denies the implied terms set out in para. 5 (ii) and 5 (iii).

In para. 4 (b) of the plea defendant pleads that, in so far as the agreement' referred to in para. 4 (c) of the particulars is concerned, defendant admits the implied term set out in para. 5 (i), but denies the implied terms set out in para. 5 (ii) and 5 (iii). As will appear later, some point was made in argument of the use by the defendant of the word ' agreement' in this paragraph as showing that the defendant understood para. 4 (c) of the particulars, in which the words 'was instructed' were used, as also referring to an 'agreement', but in fairness to F the defendant it should be pointed out that in the same paragraph of its plea (viz. para. 4 (b)) defendant also refers, on three occasions, to the 'instructions' given in 1970.

Proceeding then with the plea, with reference to para. 6 of the particulars defendant admits that it failed to set out the G correct boundaries as alleged, but denies that such failure was a breach of its obligations. Defendant alleges that it reflected in the second site diagram the improvement lines as shown in the first site diagram, as it was obliged to do.

With regard to para. 7 of the particulars of claim defendant admits that it was 'instructed' to point out to the contractor H the pegs indicating the building lines, and that it pointed out the pegs in such a position that the Unprovement lines were incorrect having regard to the subsequent second road widening scheme, but says that it was implicit in the said instructions that defendant was to point out the pegs in accordance with the improvement lines reflected on the second site diagram, which the defendant correctly did.

In para. 7 of the plea defendant admits that the building was set too far forward but denies that this was caused by defendant's conduct.

Defendant then goes on to raise a defence based on estoppel, and in paras.

Watermeyer J

9 and 10 of the plea raises as an alternative defence that, in the event of it being held that defendant breached the implied term referred to in para. 5 (i) of the particulars of claim and thereby caused the plaintiff to suffer damages, defendant's A conduct in committing a breach of that implied term was not the sole cause of such damage, and that the plaintiff was partly at fault in relation thereto, plaintiff being negligent in certain respects which the defendant then proceeds to set out.

The plea concludes with a prayer for judgment against plaintiff with costs, and an alternative prayer that in the event of it being held that by reason of defendant's breach of the implied B term referred to in para. 5 (i) of the particulars of claim plaintiff suffered damage, and in the event of it being further held that such damage was caused partly by the fault of the plaintiff and partly by the fault of the defendant, that plaintiff's damage be apportioned in terms of the Apportionment of Damages Act, 34 of 1956.

To the alternative defence raised in paras. 9 and 10 of the C plea, and to the alternative prayer, plaintiff has taken exception on the ground that such paragraphs and prayer do not disclose a defence to plaintiff's cause of action because plaintiff's cause of action is based on a breach of contract, that defendant has raised the defence of contributory negligence and fault on the part of plaintiff, invoking the provisions of the Apportionment of Damages Act, and that that D Act deals only with delictual claims and not claims based on breach of contract.

Before dealing with this...