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[2019] ZANCHC 1
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Grobbelaar h/a Afriplan Town and Regional Planners v Tremaine Crawford Property Portfolio (293/2015) [2019] ZANCHC 1 (19 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case No: 293/2015
Heard
on: 01/11/2018
Delivered:
19/02/2019
In
the matter between
SCHALK
MELCHIOR GROBBELAAR H/A
AFRIPLAN
TOWN AND REGIONAL PLANNERS
Plaintiff
And
TREMAINE
CRAWFORD PROPERTY PORTFOLIO
Defendant
JUDGMENT
PAKATI
J
[1]
The plaintiff, Schalk Melchior Grobbelaar t/a Afriplan Town and
Regional Planners, issued summons against
the defendant, Tremaine
Crawford Property Portfolio (the developer of the land), a company
registered in terms of the statute of
the Republic of South Africa
with its registered place of business at Riverton Road 1, on 17
February 2015 for services rendered
amounting to R350 000-00.
The summons was served by affixing a copy at the principal door at
the company’s registered
address on 17 February 2015.
[2]
The plaintiff’s claim is based on a partial written and partial
oral agreement entered into by the parties
around June 2013. The
plaintiff represented himself and the defendant, by Mr Tremaine
Crawford. The partial written agreement which
is undisputed reads:
‘
APPOINTMENT
AS REGISTERED TOWN PLANNER
AFRIPLAN TOWN AND
REGIONAL PLANNERS
I, Tremaine Crawford,
in my capacity as director of TCPP, hereby appoint AFRIPLAN TOWN AND
REGIONAL PLANNERS to design a new layout
for consolidated Erf 36926,
Kimberley.
Both parties understand
that the existing township layout on Erf 36926, Kimberley is fraught
with design errors and cannot be successfully
implemented. Afriplan
Town and Regional Planners is therefore mandated to design a
completely new township layout that would replace
and cancel the
existing design.
The layout should
conform to the conditions as stipulated in attached council
resolution.
In terms of this
appointment you must ensure that the layout is submitted to and
approved by the local Municipality.
Both parties agree to a
fee of R350 000-00 (Three hundred and fifty thousand rand)
inclusive of VAT, if applicable, as full
and final payment. The fee
is payable as follows:
50%
on appointment (within 7 days after signing of this appointment
letter)
50%
on submission (within 7 days after signing of this appointment
letter)
The administration and
application costs are for the owner.
Your
appointment is valid from date of signature hereof
.’
[3]
The plaintiff alleges that it complied with its obligations in terms
of the agreement and despite demand the
defendant has failed to pay
the amount agreed upon by the parties.
[4]
In
its
plea filed on 04 June 2015 the defendant states that the material
explicit, alternatively tacit terms of the agreement were
that 50% of
the professional fee would be paid to the plaintiff on the following
conditions:
4.1
That the plaintiff’s township plan in respect of the township
development complied with the entire town planning requirements
and
other resolutions and decisions that the Sol Plaatje Municipality
imposed in respect of the town planning;
4.2
That the plaintiff’s plan had to maximise the use of Erf 36926
in that the maximum amount of erven possible had to be
developed on
the Erf; and
4.3
That the plaintiff had to exercise reasonable care and skill in the
performance of its mandate in accordance with the generally
accepted
standards and with due professional care required of a town planner.
[5]
The defendant alleges that the plaintiff failed to perform in terms
of the agreement in that:
5.1 A proper site
inspection as would be expected from a town planner was not done;
5.2 The plaintiff
breached the agreement and the conditions for payment were not met;
5.3 The plaintiff is
not entitled to his professional fee.
The defendant requested
that the plaintiff’s claim be dismissed with costs.
[6]
On 08 April 2015 the plaintiff filed a notice applying for summary
judgment accompanied by an affidavit verifying
the cause of action
and the amount claimed. The matter was set down for hearing on 24
April 2015. The defendant filed a notice
of opposition dated 15 May
2015. On that day the matter was postponed to 29 May 2015 and
the defendant was ordered to pay
the wasted costs. The defendant
filed his opposing affidavit dated 27 May
2015.
[7]
In its affidavit opposing summary judgment the defendant stated at
paragraph 7.1 that he would have to appoint
another town planner to
perform the mandate and draft an amended plan that would have
to be submitted and approved.
In para 7.2 he stated that the
plaintiff had breached the agreement to such an extent that it would
have a counter-claim against
it due to failure to exercise the
necessary care. He then claimed to have a
bona fide
defence
hence the order granted by Erasmus AJ on 29 May 2015.
[8]
On 29 May 2015 Erasmus AJ granted the following order by agreement
between the parties:
‘
1.
Die aansoek om summiere vonnis word van die hand gewys;
2.
Verlof word aan die respondent verleen om die aksie te verdedig;
3.
Dat 29 Mei 2015 geag word as die datum waarop die verweerder die
aksie verdedig het;
4.
Dat die koste van die aansoek, koste in die aksie sal wees.’
[9]
On 15
June 2015 the
plaintiff’s attorneys, Van De Wall Incorporated, withdrew as
attorneys of record and Duncan & Rothman took
over as the
plaintiff’s attorneys on 28 August 2017. On 10 November 2017
Engelsman Magabane Incorporated withdrew as attorneys
of record of
the defendant.
[10] The
plaintiff set the matter down for trial to be heard on 01 November
2018. On 08 and 09 October 2018 the Deputy Sheriff
attempted to serve
the notice of set down but did not find anyone at the defendant’s
business address. On 10 October 2018
the notice could still not be
served. Ms Crawford, Mr Crawford’s mother, informed the deputy
Sheriff that he had left the
address and that his current address was
Swanns Street. On 24 October 2018 the Deputy Sheriff served the
notice of set down by
affixing it at the post-box at the defendant’s
registered address because the defendant’s mother refused to
receive
a copy from him stating that the defendant never comes home
or call. The Companies and Intellectual Property Commission (“CIPC”)
document shows that the defendant’s company was still active on
23 October 2018 and that the director’s registered
business
address was Riverton 1, 8301.
[11] On 01
November 2018 neither the defendant nor his legal representative were
at court. The defendant’s name was
called outside the court
room three times but there was no response. Mr Steyn, on behalf of
the plaintiff, indicated that attempts
had been made to call the
defendant but to no avail.
[12] On 01
November 2018 Mr Grobbelaar testified that after passing Matric he
acquired a three year national certificate in
engineering survey in
Pretoria. He joined the municipality in Kimberley where the
councillor at the time, approved that he study
town and regional
planning in Cape Town. He completed a higher diploma equivalent to a
B-Tech Degree after 1992. At the time he
was working as a Municipal
Manager at Dikgatlong Municipality. He studied his Master’s
Degree in Town and Regional Planning
at the University of Free State
and qualified in 2000. He became a part-time lecturer at the same
University lecturing planning
law. He assisted Professor Van Wyk from
University of South Africa in town and regional planning when she
wrote her book. His name
appears in the preview of the said book. In
2003 he worked at COCSTA as the only town and regional planner. He
was also registered
as a professor in Town and Regional Planning and
considers himself as an expert in the field. When he placed his
qualifications
and experience on record it was clear that he was
undoubtedly an expert.
[13] Mr
Grobbelaar testified further that he was approached by the defendant
who had a plan drawn up by a Town Planner from
Stabiles Engineering &
Town Planning Firm in Kimberley. He stated that there were mistakes
in the said plan and he was asked
to perform professional services
for another layout of the plan. According to him the original plan
had already been approved by
the Council. He testified that he
retired in 2015 but currently does private work. He has been doing
this professional work since
1976.
[14] Mr
Grobbelaar testified further that he redrafted the township layout
plan and was on board all the time. The defendant
was present
throughout and was satisfied with his progress. He testified that he
did site-seeing and inspection a couple of times.
He showed the
difference between the original and the redrafted plan (Exhibit “B”).
He also pointed out a green part
on the existing plan that shows a
stormy water trench and stated that no houses could be built there as
they would be damaged by
the trench. He then opened the trench
surface drainage in the new draft plan. The previous layout was
revised in a letter (Exhibit
“C”) that he addressed to
the Municipality accompanied with photographs to neutralise it. It
reads thus:
‘
REDESIGN
OF ERF 36926, KIMNDUSTRIA, KIMBERLEY
The
development and design (layout plan) of erf 36926, Kimberley had been
approved by Council C54 dated 6 February 2008. During
the
implantation phase, it was found that the proposed layout did not
take into account the storm water trench that runs from South
to
North, as can be seen on the following photos, map and topographic
analysis.
Extension
was given to redesign the layout till 19 July 2015. Attached find
copies of the new layout (smg/2013/2).
The design makes
provision for the following facilities:
Erf Numbers
Erven
Land Use
Area
%
1 to 462
462
Single Residential
210646
45.8
463 to 464
2
General Residential
20717
4.5
465 to 467
3
Church
4786
1.0
468
1
Crèche
1090
0.2
469
1
Clinic
1051
0.2
470
1
School
23661
5.1
471 to 473
3
Business
11475
2.5
474 to 496
23
Public open space
53067
11.5
497 to 498
2
Sewer Servitude
4586
1.0
Roads – 20m
48442
10.5
Streets
81478
17.7
498
Total
460999
100.0
The facilities
provided, match the facilities provided for in the original layout.
The 20m collector roads gather the traffic from
internal streets and
provide easy access to the existing road pattern. There is no
crossing in the layout.
A
18m street provide easy access to and from the school, clinic and
crèche, as well as the business sites and connect the
20m
roads. The general residential site was design to give pedestrian
access to the community facilities. The design creates the
feeling of
a central business area and the placing of the facilities compliments
the principle.
The
existing storm water trench, servitude and public open space design
create a green feeling and the street system provide for
a pleasant
and safe residential atmosphere due to the fact that there is no
traffic passing through the suburb.
The
design creates a holistic unit for a pleasant township to live in.
For
the allocation of erf numbers with the Surveyor-General and the final
design of the infrastructure, your urgent approval will
be
appreciated.”
[15] Mr Grobbelaar
stated that the plan he drew up complied with all the requirements of
Sol Plaatje Municipality as far as planning
is concerned. He
testified further that he performed according to the agreement and
with the accepted standards and with due professional
care required
of a professional planner. He stated that he did not receive payment
from the defendant after he complied in terms
of the agreement. He
stated further that he made several calls and sent a number of emails
to the defendant and he always said
he would make payment in seven
days’ time. One of the emails he forwarded is dated 06 April
2014 (Exh “D”). At
his home they gave the defendant a
nickname namely, ‘seven days’. The defendant’s
legal representative also made
the seven days’ promises which
never came to fruition. Exhibit “D” reads:
‘
Ek
is regtig teleurgesteld veral as in ag geneem word wat ek alles die
afgelope 7 maande deur gegaan het. Daar is egter nou maar
druk op my
as voorheen. Dit noop my om stappe te doen soos in my vorige e-pos
verwys.
Nog
steeds antwoord jy nie my oproepe of my e-posse nie.
So
indien die fooie met rente nie teen die 15de April [2014] inbetaal is
nie, moet ek ongelukkig ‘n hof interdik kry om die
projek te
stop totdat my fooie betaal is.
Ongelukkig
dink ek nie dis in jou of my belang om sulke drastiese stappe te neem
nie, maar alles in die lewe het ‘n begin
en ‘n einde.‘
[16] Rule 39
(1)
[1]
provides that if, when a
trial is called, the plaintiff appears and the defendant does not
appear, the plaintiff may prove his
claim so far as the burden of
proof lies upon him and judgment shall be given accordingly, in so
far as he has discharged such
burden. In
IRISH
& CO (NOW IRISH & MENELL ROSENBERG INC) v KRITZAS
[2]
Levy AJ held:
‘
It
has long been recognised that where in an ordinary action a party
chooses not to appear at the trial or, having appeared, withdraws
from the trial the other party remaining need not content himself
with an order for absolution from the instance but may elect
to lead
evidence in order to satisfy the Court that he is entitled to a
judgment on the issue raised by those claims.’
[17] After
summary judgment was refused the defendant had an opportunity to
testify and defend the action but failed to do
so. The plaintiff gave
viva voce
evidence thereby proving his claim to the
satisfaction of the Court. In my view, it is entitled to judgment
with costs.
In
the circumstances I grant the following order:
1.
The
defendant, Tremaine Crawford Properties Portfolio, is ordered to pay
to the plaintiff, Schalk Melchior Grobbelaar t/a Afriplan
Town and
Regional Planners, an amount of R350 000-00 plus interest
a
tempora morae.
2.
The
defendant is ordered to pay costs of the application on a scale as
between party and party.
__________
BM
PAKATI
JUDGE-NORTHERN
CAPE DIVISION, KIMBERLEY
On
behalf of the Plaintiff: Mr JG Steyn
Instructed
by:
Duncan
& Rothman
On
behalf of the Defendant: No Appearance
[1]
Uniform Rules of Court
[2]
1992 (2) SA 623
at 632I