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2023
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[2023] ZAFSHC 29
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Investeach Lerekat (Pty) Ltd v Morobane (5052/2019) [2023] ZAFSHC 29 (8 February 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
CASE
NO: 5052/2019
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
INVESTEACH
LEREKAT (PTY) LTD
Plaintiff
And
MATHEDISO
ANNA MOROBANE
Defendant
APPLICATION
FOR LEAVE TO APPEAL
JUDGMENT
BY:
MHLAMBI,
J
DELIVERED
ON:
This judgment was handed down
electronically by circulation to the parties’ legal
representatives by email and released to
SAFLI. The date and time for
the hand-down are deemed to be 8h00 on 08 February 2023
[1]
This an application for leave to appeal in terms of section
17(1)(a)(i) which provides
that leave to appeal may only be given
where the Judge or Judges concerned are of the opinion that the
appeal would have a reasonable
prospect of success.
[2]
The grounds of appeal are stated as follows:
1.
The court misdirected itself in finding
that the defendant is liable to pay the plaintiff the amount of R
130 339-38, regard
being had on the following: -
1.1
The plaintiff’s case was based on the
written contract in the amount of R 450 000-00.
1.2
The defendant’s case was that the
agreement was that the plaintiff would complete the construction of
the housework with the
amount of R 334 966-42, which was the
balance in her home loan account. The plaintiff vehemently denied any
such agreement.
1.3
The court effectively rejected the
plaintiff’s version in this regard.
2.
The
plaintiff failed to prove any amount, if any, owed to it by the
defendant.
3.
The court failed to take into account that
the plaintiff did not comply with the terms of the very same contract
he relies upon.
3.1
Mr Komako conceded under cross-examination
that the plaintiff did not comply with the terms of clause 1 of the
written contract
between the parties, in that the plaintiff failed to
provide and pay for all the material, tools, equipment and labour
required
to perform construction work required.
4.
The court further failed to take into
account the undisputed evidence of the defendant in respect of the
further and or more expenses
related to the construction of the house
she incurred as further fortified by the transactions contained in
her bank statements
and which amounts were not covered in the
plaintiff’s particulars of claim.
4.1
In this regard the court only focused on
the deductions contained in the particulars of claim.
5.
The court erroneously approached the
quantum of the plaintiff’s case by simple method of deducting
what was proven by the
defendant as her own expenses instead of what
the plaintiff could or could not prove as his damages.
6.
The court erred in awarding the costs in
favour of the plaintiff, regard been had of the following: -
6.1
The court effectively accepted that the
intentions of the parties are covered in Exhibit “B”,
which was introduced by
the defendant and rejected the plaintiff’s
version.
6.2
Although the court found that the defendant
is indebted to the plaintiff that was not found on the basis of the
plaintiff’s
own evidence.
6.3
The undisputed evidence of the defendant,
that she offered the amount of R 80 000-00, in settlement of the
matter before it
came to court and there was no evidence and or any
plausible explanation why the offer was not accepted.
7.
Therefore, leave to appeal to the full
court of this Division stands to be granted in that the appeal would
have reasonable prospects
of success.
[3]
In essence, the attack on the judgment is that the court accepted
that the parties
regulated their contractual relationship by jointly
drafting and signing annexure “A” and “B”
which related
to the completion of the construction work for the
balance of R 334 966.42 being the remainder of the bank loan
extended to
the respondent. Sight has been lost of the fact that the
plaintiff testified that he would complete the work with that
amount
[1]
and also admitted his
signatures to both annexures “A” and “B”
[2]
.
It was also not in dispute the plaintiff was initially contracted to
do the roof as the house was only built up to the “W
all
plate level”
[3]
and that the defendant conceded that the plaintiff did furnish her
with the engineer’s roof certificate. The amount of R
334 966.42 was released to the defendant on 21 August 2019 and
no payment whatsoever was made to the plaintiff.
[4]
One of the grounds of appeal is a concession that the undisputed
evidence is that
the defendant made an offer in the amount of R
80 000.00 to the plaintiff in settlement of the matter. Despite
the denial
in her papers and in parts of her oral evidence that she
did not owe the applicant anything, she testified that she did not
refuse
to pay the plaintiff. The plaintiff was overhasty to institute
a claim against her.
[5]
It was argued in the plaintiff’s written heads of argument that
the plaintiff’s
non-compliance with clause 1 of the original
agreement was fatal as it militated against the sanctity and privity
of contract.
Furthermore, the court had rejected the plaintiff’s
reliance on the agreement that was attached to the particulars of
claim.
The latter submission is misconceived as nowhere in the
judgment was it stated that the plaintiff’s reliance on the
agreement
was rejected. What is clear from the judgment is that the
terms of the agreement were modified by virtue of the conclusion of
annexures
“A” and “B” by the parties.
[6]
It is common cause that the plaintiff did not have sufficient funds
to complete the
project and had to rely on the defendant for
financial assistance. It is also undisputed that he had to alienate
some of his assets
to finance the project because the bank refused to
release the money as it felt at risk because of the defendant having
changed
the building plans. This explained his willingness to
conclude exhibits “A” and “B”.
[6]
In the circumstances, I am of the opinion that this appeal does not
have a reasonable prospect
of success and should therefore fail.
[7]
I therefore make the following order:
Order:
The application for leave
to appeal is dismissed with costs.
MHLAMBI,
J
On
behalf of appellant:
Adv. F Bester
Instructed
by:
Horn & Van Rensburg Attorneys
4
Nobel Street
Brandwag
Bloemfontein
On
behalf of respondent:
Adv. R.J Nkhahle
Instructed
by:
Mavuya Attorneys Inc.
Suit
201
2nd
Floor
Cuthberts
Building
78
Charlotte Maxeke Street
Bloemfontein
[1]
Paragraph 6 of the judgment.
[2]
Paragraph 7 of the judgment.
[3]
Paragraph 6 of the judgment.