Le Roux v Zeitsman and Another (HCA10/2020) [2021] ZALMPPHC 79 (2 November 2021)

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[2021] ZALMPPHC 79
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Le Roux v Zeitsman and Another (HCA10/2020) [2021] ZALMPPHC 79 (2 November 2021)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
(1)
REPORTABLE
:
YES/
NO
(2)
OF INTEREST TO THE
JUDGES:
YES/
NO
(3)
REVISED.
2/11/2021
.
CASE
NO: HCA10/2020
In the matter
between:
JAN PIETER LE
ROUX

APPLICANT
and
CHRISTIAAN
FREDERIK ZIETSMAN

FIRST
RESPONDENT
ESTER PETRONELLA
ZIETSMAN

SECOND RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
This is an appeal against the judgments and orders of Regional Court
Magistrate Laminga in respect
of the merits delivered on 31 August
2018 and Magistrate Vorster in respect of quantum delivered on 23
October 2019, both in the
Regional Court sitting at Tzaneen.
The
Appellant was the Defendant and the Respondents were the Plaintiffs
in the
Court
a quo
.
For
the sake of convenience the parties in this appeal will be referred
to as in the
Court
a quo;
i.e.
the Plaintiffs and Defendant.
[2]
The Plaintiffs claimed from the Defendant
damages resulting from patrimonial loss in repairing a roof
of a
house and loss of income as the house could not be used as a
guesthouse during repairs of the roof. The Plaintiffs relied on
fraudulent misrepresentation as a cause of action, alternatively
fraudulent       non-disclosure. Both
of the Plaintiffs’ claims are based on a written Deed of Sale in
terms of which the Plaintiffs purchased an immovable property
(“the
property”) from the Defendant.
[3]
The Plaintiffs’ claims are based upon the
following material allegations:
3.1.
The roof of the property suffered from a defect;
3.2.
The Defendant was aware of the defect in the roof;
3.3.
The Defendant had a duty to disclose the defect to the Plaintiffs;
3.4.
The Defendant failed to disclose the defect, thereby
perpetrating a fraudulent non-disclosure, alternatively
misrepresentation;
3.5.
The Defendant was aware that the Plaintiffs intended to
use the property for purposes of conducting the business
of a
guesthouse;
3.6.
It was impossible to sustain the business of a guesthouse without
repairing the defective roof;
3.7.
The Plaintiff were unable to conduct the business of a guesthouse as
a result of the defect and the repairs
for a period of two months.
[4]
In essence the Plaintiffs’ claim is based on a fraudulent
non-disclosure, alternatively fraudulent
misrepresentation by the
Defendant in respect of the condition of the roof of the immovable
property which is the subject of an agreement
of sale between the
parties; and the second claim is for loss of income subsequent to
having to close the Plaintiffs’ business
of a guesthouse operated
from the said property, for purposes of the repair of the faulty
roof.
[5]
In his defence the Defendant pleaded essentially that he was aware of
the leaking roof, that he
disclosed this fact to the Plaintiffs and
that the Defendant made no intentional fraudulent misrepresentation
or withheld any disclosure
of the defects. He relies on the
protection of a “voetsoots” clause in the sale agreement.
[6]
The
Court a quo
awarded damages in favour of the Plaintiffs
for:
6.1.
Payment of R167 480-23 in respect of the costs of repairs to the
roof and;
6.2.
Payment of R68 038-00 in respect of loss of income.
The
appeal to this Court is on both merits and quantum of damages.
[7]
The issue before the
Court a quo
was not the leaking of the
roof of the house which the Plaintiffs purchased from the Defendant,
but whether the Defendant knew of
the structural defects in the roof
which caused it to leak.
The
Court
a quo
found
that what was in dispute was knowledge of the Defendant of the
structural defects of the roof, the extensive leakage and whether
the
Defendant failed to disclose it.
In
the light of the above, two essential questions remain to be answered
in this appeal:
7.1.
Whether the Plaintiffs proved that the Defendant was aware of the
latent defects i.e. the structural defects
in the roof; and
7.2.
Whether the facts in this case resulted in the faulty condition of
the roof being obvious or easily discoverable
upon reasonable
inspection.
[8]
The Defendant disputes that he perpetrated a fraudulent
non-disclosure or misrepresentation. He
alleges that the roof leak
was disclosed to the Plaintiffs and that the Plaintiffs are precluded
from claiming damages by virtue
of the fact that the Deed of Sale
contained a voetstoots clause.
Furthermore
the Defendant disputes that it was impossible to sustain the business
of a guesthouse without repairing the defective
roof.
Accordingly,
the Defendant disputes that the repairs to the roof were necessary
and that the Plaintiffs were unable to conduct the
business of a
guesthouse as a result of the defects and the repairs for a period of
two months as alleged.
[9]
Based on the pleadings in this matter the material issues in dispute
and which the Plaintiffs were
required to prove in the
Court a quo
were:
9.1.
Whether the Defendant perpetrated a fraudulent non-disclosure or
misrepresentation;
9.2.
Whether the Plaintiffs were entitled to claim damages in
circumstances where the Deed of Sale contained a voetstoots
clause;
9.3.
Whether the repairs to the roof were necessary;
9.4.
The quantum of the repairs to the roof;
9.5.
Whether the Plaintiffs were unable to conduct the business of a
guesthouse as a result of the defect and the
repairs for a period of
two months;
9.6.
Whether the Plaintiffs suffered a loss of income.
The
Evidence
[10]
The following witnesses testified for the Plaintiffs on the merits:
Christiaan
Frederik Zietsman
(“First
Plaintiff”)
Ester
Petronella Zietsman
(“Second
Plaintiff”)
Iris
Thornhill
(“Ms.
Thornhill”)
and
Dirk Daniel Rosslee
(“Mr.
Rosslee”)
The
Defendant testified under oath as the only witness for the defence.
[11]
The following facts are common cause between the parties:
11.1.
The Plaintiffs signed a deed of sale of the property on 28 March
2011;
11.2.
The Plaintiffs took occupation of the property on 11 July 2011;
11.3.
During a visit to the property in February 2011 the Second Plaintiff,
Ms. Thornhill and the Defendant were at the property
during which
time they had a conversation about the leak in the roof above room 7.
It is a fact that room 7 indeed had a leak of
which the Defendant was
aware;
11.4.
The Defendant was aware that the Plaintiffs intended to use the
property for the purpose of conducting the business of
a guesthouse;
11.5.
Had the Plaintiffs been aware of the extent of the leaks and the
condition of the defects in the roof, they would not
have purchased
the property.
[12]
The evidence of the Plaintiff is summarized as follows:
12.1.
The Plaintiffs were introduced by Ms. Thornhill, an estate agent who
knew that the Defendant was intending to sell a property
from which
the Defendant was operating a guesthouse known as Lavenir. The
Defendant indicated another property from where he was
operating
another guesthouse known as Christie’s Inn Guest House. This is the
property the Plaintiffs eventually purchased from
the Defendant and
which is the subject of this litigation.
12.2.
The Plaintiffs viewed and inspected the property. The Second
Plaintiff and Ms. Thornhill noticed marks on the ceiling
in one room
and upon their enquiry, the Defendant stated that the roof leaked but
that it had been fixed and did not leak anymore.
The Second Plaintiff
and Ms. Thornhill also noticed water damage to the cornice in another
room and the Defendant stated that there
was also a leak which had
been fixed. The two women further noticed damp in the toilet of room
7 and the Defendant stated that there
was a leaking pipe in the wall
which had been fixed. When they visited the property again, there
were new tiles installed where the
damp had been. The Second
Plaintiff later discovered that the leak was never fixed.
12.3.
Under cross-examination the Second Plaintiff denied that the
Defendant had said that he had tried to repair the roof in
room 7,
but did not know whether he had been successful, as it had not
rained. She said the Defendant had assured her that the roof
had been
repaired and did not leak.
12.4.
The Plaintiffs took occupation of the property on 11 July 2011. When
the first rains fell in September/October 2011, the
roof leaked
badly. All the rooms were affected, some worse than others. Bedding
and luggage was soaked, floors were wet and furniture
was damaged and
had to be replaced. Guests had to be moved.
12.5.
The Plaintiffs claimed under the Homeowners Insurance Policy with
Santam, but the claim was rejected due to the findings
of the
assessor.
Initially
the Plaintiffs did not have the funds to repair the roof and coped as
best as they could. Every time it rained the roof
leaked again.
Eventually they obtained a loan and commenced repair work in March
2014. Prior to the appointment of contractors no
construction work
was done to the roof between 2011 and 2014. It was impossible to
continue conducting a guesthouse business with
the roof in its
defective state.
According
to the Second Plaintiff had they been aware of the condition of the
roof, they would never have bought the property.
12.6.
On 12 April 2013 the plaintiffs appointed a civil engineer, Mr.
Rosslee, who inspected the roof and provided a report
on 11 May 2013.
According to his expertise as a civil engineer the roof of the
property was poorly constructed and maintained resulting
in it being
prone to leak from the day it was built.
12.7.
The First Plaintiff (Mr. Zietsman) is the registered owner of the
property in question. During the first visit, he went
to the property
with the Second Plaintiff and Ms. Thornhill.
He
confirmed the evidence of the Second Plaintiff that during the first
rains there were serious leakage, so much so that all the
rooms
leaked. Linen got wet, guests complained, furniture and mats were
affected.
The
Plaintiffs claimed from Santam, but the claim was rejected due to
pre-existing defects in the roof. He stated that it was impossible
for the Plaintiffs to run a proper guesthouse business on the
property without solving the leakage problem. Had he been aware of
the true state of affairs, he would not have bought the property.
[13]
Ms. Iris Thornhill is the estate agent who negotiated the sale
transaction of the property and was present
during the visits
testified to by the Second Plaintiff. She confirmed that the
Defendant had given the assurance that the roof had
been repaired and
no longer leaked. She denied that the Defendant had said that he had
tried to repair the leaks, but did not know
whether he had been
successful. She testified that the Defendant said the roof had been
repaired and no longer leaked.
She
also confirmed the Second Plaintiff’s evidence regarding the
leaking pipe in the wall of the toilet of room 7 and the fact that
by
their next visit the damp spot on the wall had been covered with
tiles.
She
testified that after the first rains in 2011 the Second Plaintiff
contacted her and took her to the guesthouse. What she found
was “Die
hele plek was onder water asook al die meubels en beddens en linne
was nat”. About the floors, she said “Papnat, onder
water”.
[14]
Mr. Dirk Rosslee is a civil engineer and was approached by the
Plaintiffs to investigate the leakage problem.
He was satisfied that
Mrs. Zietsman’s complaints were valid. He prepared a written report
which was handed in as an exhibit in
the trial.
The
conclusion in paragraph 6 of his report was that the roof of the
property was prone to leak from the day it was built. According
to
his report there is much evidence that efforts were made to seal off
leaks in the past. That it is clear that the problem had
escalated
with time, because many tiles were damaged by workers during
maintenance efforts.
He
stated that any claim by the previous owner that no problems were
experienced with the roof in the past would simply be impossible
and
untruthful.
It
appeared that the building had been enlarged at some stage and
unprofessional methods were used to adapt the roof trusses. The
configuration of roof timbers was totally unacceptable and unstable.
There were many signs that plastic sheeting had been used in
an
attempt to prevent leaking, but this method is totally ineffectual.
The
correct procedure is to use a good quality membrane properly applied
as per manufacturers’ specification.
Mr.
Rosslee orally advised the Plaintiffs to replace the roof with metal
sheeting.
[15]
In cross-examination Mr. Rosslee said he found it impossible to
believe that the Defendant had not encountered
problems during the
five years plus, that he owned the property.
No
expert witness was called and evidence led for or on behalf of the
Defendant to contradict the testimony of Mr. Rosslee. The expert
evidence of Mr. Rosslee remains uncontested.
[16]
The Defendant testified that he occupied the property for 5 (five)
years and 9 (nine) months before the Plaintiffs
took occupation on 11
July 2011. During that time only room 7 leaked when it rained. He
employed a contractor to cover a portion
of the roof slightly bigger
than a double garage with plastic. The only leakage problem that he
disclosed to the Plaintiffs was in
room 7.
For
the full 5 (five) years and 9 (nine) months that he occupied the
property, only that one room, namely room 7 leaked and this was
the
state of affairs on 11 July 2011 when Plaintiffs took occupation.
The
Defendant testified that he did point out the mark on the ceiling to
the Second Plaintiff and Ms. Thornhill when they viewed the
property.
During the same inspection he also informed them that he had a
problem with a leak in room 7, which he had tried to repair
by
installing a plastic membrane under the roof tiles.
[17]
The Defendant denied that he had experienced that the roof leaked,
except in room 7. When it was put to him
that with the first rains in
September/October 2011 all the rooms leaked, he responded that it is
unbelievable. He denied that if
it were so, there had been a dramatic
deterioration of the roof in a period of three months from 11 July
2011.
The
Defendant was unable to explain how the condition of the roof as
alleged by him as at 11 July 2011 could have deteriorated so
dramatically in a period of 3 (three) months that the whole roof
leaked during September/October 2011.
Evaluation
of the Evidence
[18]
Taking into consideration the conspectus of the evidence
on record and the credibility of all the witnesses in this
matter, it
is accepted as a fact that with the first rains of September/October
2011, all the rooms of the property leaked. This
is confirmed by the
Plaintiffs and Ms. Thornhill. Once it is accepted that all the rooms
leaked, it becomes inconceivable that the
condition of the roof as
alleged by the Defendant could have deteriorated so dramatically in a
period of three months.
[19]
The testimony of the Plaintiffs and Ms. Thornhill on this point is
strongly corroborated by the objective evidence
of the engineer, Mr.
Rosslee. The Defendant’s version is irreconcilable with Mr.
Rosslee’s evidence that there were numerous
places where rainwater
had direct access to the ceiling below, as a result of longstanding
defects in the roof construction.
Of
particular importance in Mr. Rosslee’s report is paragraph 6
wherein it is stated:
“
Any
claim by the previous owner that no problems with the roof leaks were
experienced in the past, would simply be impossible and
untruthful”
.
[20]
I accordingly make a finding that the whole roof of the property had
latent defects.
Issue
for determination
[21]
The issue for determination in the present appeal before us is
whether the Plaintiffs proved the requisite
knowledge on the part of
the Defendant of the latent defects in the roof, which he then
fraudulently concealed from the Plaintiffs.
[22]
An assessment of whether the Plaintiffs proved that the Defendant
knew of the latent defects in the roof, which
caused it to leak, and
also that he knew that the repairs effected would not permanently
solve the problem of it leaking, in the
face of the Defendant’s
denial that he possessed such knowledge, requires an assessment of
the objective facts. Any inference sought
to be drawn must be drawn
from the facts revealed by the evidence.
[23]
Before this Court the Defendant (Appellant) contends that the
Plaintiffs (Respondents) have not established
a case of fraud against
him and that the Court below therefore erred in finding that the
Plaintiffs could avail themselves of the
aedilitian remedies despite
the voetstoots clause.
Counsel
for the Plaintiffs, on the other hand, contends that the evidence
established willful non-disclosure against the Defendant.
[24]
It is not clear from its judgment whether the
Court a quo
found that the Defendant willfully concealed the defects. Nor does
the Court’s reasoning deal with the effect of the voetstoots
clause, which excludes liability for both latent and patent defects.
It nevertheless upheld the Plaintiffs’ submission that it
was
entitled to invoke the aedilitian remedies and rejected the
Defendant’s contention that he did not have knowledge of the latent
defects on the roof.
The
Law on latent defects
[25]
Defects, whether latent or patent, are abnormal qualities or
attributes which destroy or substantially impair
the utility or
effectiveness of the property for the purpose for which it had been
sold and is commonly used.
Defects
are latent in that they would not have been visible or discoverable
upon inspection by the ordinary purchaser.
[1]
A
seller in a contract of sale has a duty to disclose latent defects in
the merx of which the seller is aware.
[2]
In
Van
der Merwe v Meades
,
supra, it was held that a seller will be deprived of the protection
afforded by a voetstoots clause where the purchaser can prove
that
the seller (1) was aware of a defect in the merx at the time of the
making of the contract and (2)
dolo
malo
concealed
its existence from the purchaser with the purpose of defrauding him.
[26]
The above legal principle is the real issue involved in the present
case.
[27]
It is also trite that where a seller recklessly tells a half-truth or
knows the facts but does not reveal them
because he or she has not
bothered to consider their significance, this may also amount to
fraud – See
Odendaal
v Ferraris
[3]
.
The
voetstoots clause in a contract of sale in this instance will not
relieve the seller from liability for misrepresentation.
[4]
The
authorities are clear that fraud will not lightly be inferred, and
where a party seeks to do so the allegation must be clear and
the
facts upon which the inference is sought to be drawn must be
succinctly stated.
[5]
[28]
The operation of the voestoots clause in a contract of sale is thus
confined to cover those latent defects
which the seller did not
deliberately conceal in order to induce the contract –
Truman
v Leonard
1994 (4) SA 371
(SE)
.
In
Banda
v Van der Spuy
[6]
it was said:
“
[24]
It is trite that a seller is liable for all latent defects which
render the res vendita unfit, or partially unfit, for the purpose
for
which it was intended to be used…. A leaking roof is a latent
defect which renders the house unfit for habitation. The respondents
were aware of one of the causes of the leaking roof, namely
inadequate roof design, which resulted in the sagging of the roof,
which
had not been permanently repaired and which they had concealed.
The respondents were unaware, however, of the other cause of the
leaking roof, namely the inadequate pitch of the roof. The fact that
they were unaware of an additional cause of the leaking matters
not.
Their fraudulent conduct in concealing the existence of the
defective, leaking roof forfeits the protection of the voetstoots
clause in respect of this latent defect”.
[29]
It follows that in this case, to succeed in their claim the
Plaintiffs have to prove that the Defendant:
(a)
was
aware of the defects in the property at the time of the negotiations
and the conclusion of the agreement of sale;
(b)
had
a duty to disclose the defects to the Plaintiffs’ and
(c)
misrepresented
the status of the defects and/or concealed the existence and/or
extent of the defects in order to defraud the Plaintiffs.
Whether
the Defendant perpetrated a fraudulent non-disclosure or
misrepresentation
[30]
The
Court a quo
made a finding that the Plaintiffs failed to
prove on a balance of probabilities that the Defendant made a
misrepresentation that
the leak pointed out (in room 7) was fixed.
However,
this cannot be the end of the matter because the Plaintiffs also rely
on fraudulent non-disclosure in that the Defendant
failed to disclose
the defects in the condition of the roof and the extent of the
leakage of the roof in order to ensure the sale
transaction.
The
defects in the roof which cause it to leak and the extent of the
leaks are latent defects in that they would not have been visible
or
discoverable upon inspection by the ordinary purchaser.
[31]
To determine whether the Plaintiffs proved that the Defendant knew of
the latent defects in the roof which
caused it to leak, that the roof
leaked in other areas besides room 7 and whether he also knew that
the repairs he made would not
permanently solve the problem of it
leaking, the objective facts must be assessed. In his evidence the
Defendant denies that he possessed
any knowledge regarding the
defects which caused the roof to leak, that he lacked knowledge of
any other leaks in the roof and stated
that he believed the repairs
he effected in room 7 would be effective. The Defendant’s evidence
in this regard should be looked
against the background of the
following objective facts:
31.1.
When the first rains fell after the Plaintiffs took occupation of the
property, the roof leaked badly;
31.2.
The uncontested evidence of Mr. Rosslee, the civil engineer is that
the entire roof speaks of negligent design, inferior
workmanship and
bad maintenance;
31.3.
According to Mr. Rosslee it is impossible to believe that the
Defendant had not encountered problems with leakage of the
roof
during the five years plus, that he owned the property;
31.4.
There is overwhelming evidence that the design and construction of
the roof was seriously flawed and that it was prone
to leak from day
one.
[32]
In his own version the Defendant had conducted maintenance to the
roof in painting it and at least once, called
a contractor to deal
with the leak in the roof. That contractor would have had to diagnose
the problem in the roof in order to advise
the Defendant on a
solution.
In
my view it is unlikely that the contractor would not have noticed and
would not have alerted the Defendant to at least some of
the
structural defects.
It
is therefore highly improbable that the Defendant was not aware of
the extent of the defects and the widespread problem with leaks
in
the roof.
The
Court
a quo’s
finding that the Defendant knew of the defects in the roof and the
extent of the leaks was much wider than just in one room cannot
be
faulted.
[33]
The
Court a quo
was correct in drawing an inference that the
Defendant had knowledge of the latent defects in the roof. Any
inference must be drawn
from the facts revealed by the evidence.
In
this case the following facts were proved to justify the drawing of
an inference:
33.1.
The Defendant was in occupation of the property for five years and
nine months;
33.2.
In July 2011 the Defendant told the Plaintiffs that the roof had
leaked in room 7, but had been repaired and no longer
leaked;
33.3.
With the first rains in September/October 2011, all the rooms leaked;
33.4.
The engineer’s inspection revealed that the entire roof
construction was defective and prone to leak from the day it
was
built.
[34]
In criminal trials inferences must be:
(a)
consistent
with all the proved facts;
(b)
the
proved facts should be such that they exclude every reasonable
inference save the one to be drawn.
[7]
In
civil cases rule (b) is not applicable and if the facts permit more
than one inference, the Court must select the most plausible.
If it
favours the Plaintiff, he is entitled to judgment. If inferences in
favour of both parties are equally possible, the plaintiff
has not
discharged the burden of proof.
[8]
[35]
In casu
, the inference that the Defendant was aware of the
defects is consistent with all the proved facts.
The
inference drawn is the most plausible because in the light of the
engineer’s report and the extensive and long-standing defects
in
the roof, it is very difficult to believe that the Defendant could
not have been aware of the seriousness of the leakage problems.
Furthermore, the roof could not possibly have deteriorated from the
condition which the Defendant alleged in evidence, namely that
only
room 7 leaked to its actual condition three months later, when all
the rooms leaked.
It
is noteworthy that the Defendant admitted to a spot on the ceiling of
room 7, but used plastic sheeting/membrane larger than a
double
garage to address it. This surely indicates knowledge of a leak far
more extensive than what he admitted.
[36]
The question that remains is whether the Defendant had a duty to
disclose the defects and whether he failed
to disclose this with the
required intent. This question is answered in the affirmative and for
the following reasons:
The
property was to be used as a guesthouse and the importance of having
a well maintained structure to conduct such a business is
a given
fact and admitted by the Defendant. The fact that there were
extensive leakage problems with the roof is material and the
Defendant had a duty to disclose this to the Plaintiffs.
Taking
into consideration the circumstances in which the Defendant failed to
disclose the true extent of the leakage of the roof and
the defects
in the roof, I come to the conclusion that the information had been
withheld to secure the sale and to benefit the Defendant.
[37]
A seller is deprived of the protection of a voetstoots clause in
circumstances where the seller perpetrated
a fraudulent
non-disclosure.
[9]
As
the Plaintiffs have successfully proved the fraudulent
non-disclosure, the voetstoots clause is not a bar to their claim in
this
case.
In
the result I make a finding that the Plaintiffs proved on a balance
of probabilities that the Defendant intentionally failed to
disclose
the defects in the roof and the true extent of the leakage of the
roof of the property in order to ensure the sale of the
property and
that the Plaintiffs would not have entered into the sale agreement as
they did, had they been aware of the defects.
The
Plaintiffs are accordingly entitled to the reasonable costs of
repairing the roof and other concomitant loss they may have suffered.
Quantum
of Damages
[38]
The
Court a quo
awarded damages in favour of the Plaintiffs in
an amount of R167 480-23 for the repairs of the roof of the
property and an amount
of R68 038-00 in respect of loss of
income.
In
this appeal the Defendant contests the award of the aforesaid
amounts.
It
was argued on behalf of the Defendant that the findings of the
Court
a quo
on
the quantum of damages raises serious questions as to probity. In
particular it was pointed out that the quantification of the
damages
amounts was based on inadmissible evidence in the form of copies of
documents which lacked originality and authenticity.
[39]
The Second Plaintiff testified in respect of the quantum of the roof
repairs that she bought materials herself
and provided all the
invoices in respect of the labour and materials to the quantity
surveyor, Mr. Gerrit Nauta. The latter quantified
the costs of roof
construction and also testified in the
Court a quo
as to the
reasonable costs of repairs.
Both
the Second Plaintiff and Mr. Nauta testified that two months was a
reasonable period in which to complete the repairs.
[40]
At the trial the Defendant consented to the use of copies of
documents
[10]
and admitted the
authenticity of the trial documents
[11]
.
There is no merit in the Defendant’s argument before us that the
documents used and handed up at the trial lacked originality
and
authenticity.
[41]
The Second Plaintiff testified that the repair lasted for more than
two months and that the guesthouse could
not be operated for that
period.
On
the loss of income she testified that she utilized external
accountants to compile the guesthouse’s financial statements. She
personally input all of the income and expenses of the guesthouse
into a computer and the accountant had remote access thereto. The
accountant, Isabel Nel compiled the financial statements for the year
1 March 2014 to 28 February 2015, which statements the Second
Plaintiff examined and verified as correct. All the financial
statements were provided to the charted accountant, Mr. Albert
Nothnagel.
The latter testified at the trial and confirmed that he
utilized the income statement of 1 March 2014 to 28 February 2015 as
the
basis of his calculation. He calculated the income on the basis
of the average income per month for the period multiplied by two.
This, according to Mr. Nothnagel was the logical and best way to
quantify the loss of income.
[42]
The purpose for awarding damages for patrimonial loss is to place the
plaintiff in the financial position,
to the extent that money can do
so, the plaintiff would have been in had the delict or breach of
contract not been committed, thereby
redressing the diminution (or
probable diminution) in his or her patrimony caused by the defendant
– See
LAWSA Volume 7 at paragraph 25
.
The
Plaintiffs’ version as to the quantum of damages in respect of the
roof repairs and the two months loss of income in respect
of the
guesthouse business was, in my view, correctly accepted by the
Court
a quo
.
[43]
The approach to the determination of quantum of damages was
succinctly put by Diemont JA in the case of
Esso
Standard SA (Pty) Ltd v Katz
.
[12]
The
learned Judge quoted with approval what was said in the case of
Herman
v Shapiro and Company
1926 TPD 367
at 379
,
the following:
“
Monetary
damage having been suffered, it is necessary for the Court to assess
the amount and make the best use it can of the evidence
before it.
There are cases where the assessment by the Court is very little more
than an estimate; but even, if it is certain that
pecuniary damage
has been suffered, the Court is bound to award damages. It is not so
bound in the case where evidence is available
to the Plaintiff which
he has not produced; in those circumstances the Court is justified in
giving, and does give, absolution from
the instance. But where the
best evidence available has been produced, though it is not entirely
of a conclusive character and does
not permit of a mathematical
calculation of the damages suffered, still, if it is the best
evidence available, the Court must use
it and arrive at a conclusion
based upon it”.
[44]
It has long been established that in some type of cases damages are
difficult to estimate and the fact that
they cannot be assessed with
certainty or precision will not relieve the wrongdoer of the
necessity of paying damages for his breach
of duty.
The
Appellate Division (as it then was) in
Esso
Standard SA
,
supra, enunciated that whether or not a plaintiff should be
non-suited depends on whether he has adduced all the evidence
reasonably
available to him at the trial.
[45]
In casu
, I am of the view that the trial Court correctly found
that it was clearly proved that the Plaintiffs did suffer pecuniary
damages
and that they proved the damages by the best evidence
available to them. The Plaintiffs led the best possible evidence
which they
were able to do to enable the trial Court to assess the
loss, and did not leave the trial Court to guess the extent of the
loss.
[46]
The
Court a quo
came to the correct finding when judgment on
both merits and quantum was granted in the Plaintiffs’ favour.
Consequently,
the appeal must fail.
Order
[47]
The appeal is dismissed with costs.
E M MAKGOBA
JUDGE PRESIDENT OF THE HIGH
COURT,
LIMPOPO DIVISION, POLOKWANE
I
agree
M B MADAVHA
ACTING JUDGE OF THE HIGH
COURT,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES
Heard on

:   22 October
2021
Judgment
delivered on
:  02 November 2021
For the
Appellant
:   Adv. S B Nel
Instructed
by
:   Ruan Vorster Attorneys
c/o
De Bruyn Oberholzer Attorneys
For the
Respondents
:   Adv. N Louw
Instructed
by
:   Stewart Maritz Basson
c/o
Pratt Luyt & De Lange
[1]
Holmdene
Brickworks (Pty) Limited v Roberts Constructions Co Limited
1977
(3) SA 670
(AD) at 683H-684C.
[2]
See
Van
der Merwe v Meads
[1991]
4 ALL SA 42
,
1991 (2) SA 1
(a). See also
Truman
v Leonard
[1994]
4 ALL SA 445
,
1994 (4) SA 371
(SE);
Banda
v Van der Spuy
2013 (4) SA 77
(SCA) at [24].
[3]
2009 (4) SA 313
(SCA) at para [29].
[4]
See
Cockcroft
v Baxter
1955 (4) SA 93 (C).
[5]
Breedt
v Elsie Motors (Edms) Bpk
1963
(3) SA 525 (A).
[6]
2013
(4) SA 77
(SCA) at para [24].
[7]
R v
Blom
1939
AD at 202-203.
[8]
See
Hoffman and Zeffertt : The South African Law of Evidence 4
th
Edition on page 590.
[9]
Glaston
House (Pty) Ltd v Inag (Pty) Ltd
1977
(2) SA 846
(A) – that where fraud is alleged one does not simply
think away the voetstoots clause.
[10]
Record,
Volume 3, page 2 at 19.
[11]
Record,
Volume 3, page 2 at 8 to 11.
[12]
1981
(1) SA 964
(AD) at 970 E-G.