Simpex (Pty) Ltd v Van der Merwe and Others

• Jurisdiction: South Africa
• Judge: Malan J
• Judgment Date: 25 September 1999
• Docket Number: 98/12032
• Hearing Date: 16 September 1999
• Counsel: E Price for the excipient (plaintiff). P Levenberg for the respondent (defendant).
• Court: Witwatersrand Local Division

Malan J:

[1] The excipient, the plaintiff, has excepted to three special I pleas contained in the defendant's plea, viz special pleas B, C and D.

Action was instituted against the four defendants jointly and severally for damages the plaintiff suffered when certain immovable property (the 'property') was damaged or suffered a diminution in value while under the control of the defendants. J

Malan J

In the particulars of claim the following allegations are made: A the four defendants are all trustees in the G & H Trust, the 'trust', which was registered on 13 December 1994 when the defendants were authorised to act on behalf of the trust. On 21 September 1994, before they were so authorised, they concluded an agreement of purchase and sale in respect of the property, purportedly on behalf of the trust purchasing the property. The agreement of sale was B declared invalid by this Court and the respondents thereafter vacated the property. The following allegations are then made in the particulars of claim:

'10

On 31 October 1994, the plaintiff gave possession and occupation of the property to the trustees acting in their capacity as such on behalf of the trust. C

11

From 31 October 1994 until 30 June 1995 the property was under the direct control of the first, second, third and fourth defendants, jointly.

12

The plaintiff did not cause transfer of ownership to pass into the name of the defendants as trustees or in any other capacity and D the plaintiff remained at all material times the lawful owner of the property.

. . .

14

While they were in possession and control of the property, the defendants were under a duty of care to the plaintiff to ensure that the plaintiff's property was not damaged or did not deteriorate or did not diminish in value, fair wear and tear excepted. E

15

During the time that the property was under the possession and control of the defendants, considerable damage was occasioned to such property in that walls were demolished or damaged, fixtures removed F or destroyed, windows and mirrors were removed or destroyed and the property was allowed to fall into a state of disrepair.

16

The damage aforesaid was caused deliberately and unlawfully by defendants or persons acting on their behalf or, alternatively, was caused as a result of the negligence of the defendants who were negligent in one or more of the following respects: G

16.1

they failed to ensure that the property was locked and secured at all relevant times;

16.2

they failed to take reasonable steps to ensure that the property was guarded against vandals or intruders; H

16.3

they failed to take reasonable steps to ensure that unauthorised persons or trespassers had no access to the property.

17

Plaintiff has suffered damages in the sum of R150 000, being the difference in the market value of the property at the time defendants took possession thereof and the fair market value after possession was restored to plaintiff. I

Alternatively to para 17 above:

18

The plaintiff has suffered damages in the sum of R143 319, being the difference between the fair and reasonable cost of repairs to the property in order to place such property in the condition it ought to have been at the time possession...