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[2020] ZALMPPHC 83
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Rabe Bouers CC v Chaya (2328/2015) [2020] ZALMPPHC 83 (30 October 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION , POLOKWANE)
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED.
CASE NO: 2328/2015
In
the matter between:
RABE
BOUERS CC
APPLICANT
and
SHAMOON
CHAYA
RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
The
Plaintiff as a homebuilder instituted an action against the Defendant
as a housing consumer claiming payment of the sum of R
1 105 473.31
being in respect of services rendered.
[2]
The
Defendant as a housing consumer raised a defence in the form of a
special plea that the Plaintiff as a homebuilder is, following
non
compliance with the provisions of the
Housing Consumers Protection
Measures Act, No 95 of 1998
, precluded from receiving any
consideration in terms of any agreement with the Defendant as a
housing consumer in respect of the
construction of homes.
[3]
The
Plaintiff presented evidence of two witnesses to support its case and
then closed its case. At the end of the Plaintiff's case
the
Defendant applied for absolution from the instance in terms of
Rule
39(6).
[4]
Mr Duan Oosthuizen, the construction manager of the Plaintiff
testified that he represented
the Plaintiff when an oral building
agreement was entered into with the Defendant. The Plaintiff operated
as the homebuilder for
the construction of 5(five) homes for the
Defendant. The Plaintiff was registered as a homebuilder with the
National Builders Registration
Council ("NHBRC") in terms
of section 10 of the Housing Consumers Protection Measures Act 95 of
1998 ("the Act").
However, the Plaintiff never enrolled the
5 (five) houses constructed for the Defendant with the NHBRC as
stipulated and required
by Section 14(1) of the Act. The Plaintiff
presented to the NHBRC that another entity, TCO Constructions acted
as the homebuilder
for the particular 5(five) houses for the
Defendant and enrolled the 5(five) houses under the name of TCO
Construction.
[5]
TCO Construction never built anything in relation to the 5 (five)
houses constructed
for the Defendant and never acted as homebuilder
in relation to the houses constructed for the Defendant. This false
information
provided to the NHBRC constitutes a contravention of
Section 14(1) of the Act and this is also a statutory offence as
stipulated
in Section 21 of the Act. I deal more fully with the
relevant provisions of the Act later in this judgment.
[6]
Mr Jakobus Rabe is the member of the Plaintiff. He confirmed that Mr
Oosthuizen represented
the Plaintiff when an oral building agreement
was entered into with the Defendant. That the Plaintiff acted as the
home builder
for the 5 (five) homes constructed for the Defendant and
that all the building construction was conducted by the employees of
the
Plaintiff, Rabe Souers CC. Mr Rabe confirmed that the Plaintiff
never enrolled the 5 (five) homes constructed for the Defendant
with
the NHBRC as stipulated by Section 14(1) of the Act, but the
enrollment was done under the name of TCO Construction. Mr Rabe
testified further that the Plaintiff never enrolled the 5 (five)
houses constructed for the Defendant with the NHBRC for reason
that
the Plaintiff was at that stage involved in a dispute with the NHBRC
and therefore arranged for the enrollment under the name
of TCO
Construction.
[7]
Section 13 of the Act provides that:
"13
Conclusion
of agreements and implied terms
-
(1) A home
builder shall ensure that the agreement concluded between the home
builder and a housing consumer for the construction
or sale of a home
by that home builder
-
(a)
shall be in writing and signed by
the parties
(b)
shall set out all material terms,
including the financial obligations
of the housing
consumers
(c)
...............
(7)
A home builder may not
-
(a)
demand or receive from a
housing consumer any deposit for construction or sale of a home
unless an agreement between the home builder
and the housing consumer
has been concluded in terms of subsection (1) and (2); and
(b)
receive any other
consideration unless the provisions of section 14 (1) or (2) as the
case may be, have been complied with
".
[8]
Section 14 (1) of the Act provides:
"14
Enrolment
-
(1)
A home builder shall not commence the construction of a home falling
within any category of home that may be prescribed by the
Minister
for the purpose of this section unless
-
(a)
the home builder has submitted
the prescribed documents, information and fee to the Council in the
prescribed manner;
(b)
the Council has accepted the
submission contemplated in paragraph (a) and has entered it in the
records of the Council; and
(c)
the Council has issued
a
certificate of proof of enrolment in
the prescribed form and manner to the home builder.
"
[9]
The penalty provision provided in Section 21 of the Act stipulates as
follows:
"21.
Offences
-
(1)
Any person who
-
(a)
knowingly withholds information
required in terms of this Act or furnishes information that he or she
knows to be false or misleading;
or
(b)
contravenes section 10(1) or (2),
13(7), 14(1) or (2), 18(1) or (2) or 19(5), and every director,
trustee, managing member or officer
of home builder who knowingly
permits such contravention, shall be guilty of an offence and liable
on conviction to
a
fine
not exceeding R25 000 or to imprisonment for a period not exceeding
one year, on each charge.
(2) Notwithstanding anything to
contrary in any other Act, a magistrate's court shall have
jurisdiction to impose any penalty prescribed
by this Act.
"
[10]
Regarding the purpose and objective of the Housing Consumers
Protection Measures Act, 1998 ("the
Act") it is clear that
this Act is consumer protection legislation, having as its object the
protection of consumers against
home builders who construct home with
structural defects, to provide consumers with information about
competent builders, and to
give effect to the rights of consumers.
Thus the Act requires registration
of home builders and enrolment of houses being built ensure that the
aims and objects of the
Act are optimally achieved.
See
National Home Builders Registration Council v Adendorf and Others
2019 (5) SA 317
at 319 C-D.
[11]
The Supreme Court of Appeal in
National
Home Builders Registration Council v Xantha Properties 18 (Pty) Ltd
2019 (5) SA 424
at 427H
said the
following per Leach JA:
"[10] At
first blush these provisions,
as
they currently
stand, therefore provide for a person who wishes to construct a home
for the purpose of "leasing renting out"
and thereby carry
on the "business of a home builder''
as
defined, to first
register
as
a
home builder under
s
10
-
after satisfying
the Council that it meets the necessary requirements
-
and then,
before
commencing construction. to enrol the home with the Council
,
pay the prescribed fee and otherwise fulfil the requirements laid
down ins 14(1), which will entail showing that the proposed
building
specification will not be substandard and will meet the necessary
specifications
(my
underlining)".
At page 430E the learned Judge of
Appeal concluded that
"
Without homes being enrolled under
s
14, inspectors
would be unable to identify them or fulfil their duties or
obligations under this section.
In
itself this is
a
clear indication
that it
was
intended that all
homes were to be enrolled' .
[12]
Section 14 of the Act appertains to the
enrolment of the home (the subject of the construction) with the
Council. It prohibits a
home builder from commencing the construction
of that home unless the Council has issued a certificate of enrolment
in respect
of it. By its very nature the protection afforded to a
housing consumer by section 14 is in addition to that afforded by
section
10 of the Act which requires that the home builder be
registered with the HNBRC -
Hubbard v
Coal Ideas 1186 CC
[2013] JOL 30478
(SCA),
confirmed
by the Constitutional Court
in Cool
Ideas 1186 cc V Hubbard and Another
2014 (4) SA 474
(CC).
The Constitutional Court confirmed
the purpose of the Act to be that a home builder who did not comply
with the registration requirements
is not entitled to claim
compensation or payment for services rendered.
[13]
In the present case it is common cause
that the Plaintiff did not enrol the 5 (five) homes constructed for
the Defendant with the
NHBRC. The enrolment was with a different
entity, namely TCO Construction. Section 13(7) of the Act prohibits
the Plaintiff in
the present case from receiving any consideration
from the Defendant for the construction of homes unless the Plaintiff
complied
with the provisions of section 14(1). Section 14(1)
stipulates that the Plaintiff, Rabe Souers CC, as the homebuilder
that constructed
the homes for the Defendant had to enrol the homes
before construction may have been proceeded with. This was not done.
[14]
The test applicable to absolution from
the instance is connected with the burden of proof resting on the
Plaintiff. The burden of
proof resting squarely on the Plaintiff in
this case is to prove that the Plaintiff complied with the provisions
contained in the
Act. The Plaintiff has failed to discharge the
burden of proof and it is therefore barred from receiving any
consideration from
a housing consumer (Defendant) in terms of any
agreement between the homebuilder and housing consumer in respect of
the construction
of a home. The Plaintiff has therefore failed to
demonstrate that it has a claim against the Defendant.
[15]
I accordingly grant the following order:
1.
Absolution from the instance is
granted.
2.
The Plaintiff shall pay Defendant
's costs of the action.
EM MAKGOBA
JUDGE PRESIDENT OF THE
HIGH COURT, LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
For
the Plaintiff
:
Adv. I A Van den Ende
Instructed
by
: Niland & Pretorius Inc
For
the Defendant
: Adv J C Klopper
Instrcuted
by
:
Corrie Nel & Kie Attorneys
Heard
on
: 20 & 21 October 2020
Judgment
delivered
: 30 October 2020