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[2016] ZAGPPHC 1207
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Cochrane and Another v Bezuidenhout and Another (A673/2015) [2016] ZAGPPHC 1207 (7 December 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE GAUTENG DIVISION OF THE HIGH COURT, PRETORIA
CASE
NO: A673/2015
[1]
REPORTABLE:
YES
/NO
[2]
OF INTEREST TO OTHER JUDGES:
YES
/NO
[3]
REVISED
DATE;
4/12/16
In
the matter between:
M F COCHRANE
First
Appellant
N E S
COCHRANE
Second Appellant
and
KP BEZUIDENHOUT
First
Respondent
CITY OF TSHWANE
METROPOLITAN
MUNICIPALITY
Second
Respondent
JUDGMENT
J
W LOUW. J
[1]
The first and second appellants, to whom I shall refer as the
plaintiffs, instituted an action against the first respondent,
to
whom I shall refer as the defendant, in which the plaintiffs claimed
an order directing the defendant to reconstruct the service
road
within the Northview Country Estate and the boundary wall surrounding
the estate in a proper and workmanlike manner and in
accordance with
proper engineering standards, alternatively an order for payment of
damages. The plaintiffs had each purchased
a vacant piece of land in
the estate from the defendant on which they have each built a
dwelling house. The plaintiffs' cause of
action was that it was an
implied, alternatively tacit, term of their respective sale
agreements that the defendant would, or would
have, ensured that the
service road and boundary wall were constructed in a proper
workmanlike manner and according to proper engineering
standards, and
that they were not so constructed.
[2]
In his plea, the defendant did not expressly deny that he would have
ensured that the boundary wall and the service road were
constructed
in a proper workmanlike manner and according to proper engineering
standards. What was pleaded in respect of the boundary
wall, was that
it was erected long before the sub-division of the farm (from which
the estate was sub-divided); that it was only
erected for the simple
purpose of demarcation of the general boundary of the farm; and that
it was erected in accordance with the
policy, structural requirements
and approved building plans required by the Peri Urban Health Board.
In respect of the service
road, it was pleaded that the conditions of
sub-division do not specifically state any particular engineering or
construction standards
or requirements to which such road must
comply.
[3]
The background facts which appeared from the evidence given by each
of the husbands of the plaintiffs was that the estate was
marketed as
an exclusive, fully enclosed and walled estate; that they inspected
the estate with their wives before the respective
properties were
purchased by their wives; that the boundary wall was important for
them as it provided security; that the wall
appeared to be in
pristine condition and to have been recently sand-bagged; and that
the service road was relatively new and in
top condition.
[4]
The plaintiffs presented the evidence of a civil structural engineer
that the boundary wall was unsafe and non-compliant with
the
requirements of the National Building Standards and Building
Regulations Act 103 of 1977 and, in his opinion, required to be
demolished and reconstructed. He testified that the internal roads
were not built according to acceptable engineering standards
and were
breaking up as a result of the unacceptable pavement method which had
been used.
[5]
At the close of the appellants' case, the defendant applied for
absolution from the instance, which was granted by the trial
court.
Leave to appeal to the Full Court was granted on petition to the
Supreme Court of Appeal.
[6]
The court
a quo
said in its judgment that the plaintiffs'
cause of action as pleaded was that the conditions of subdivision are
implied or tacit
terms of the written agreements of sale which the
defendant failed or neglected to fulfil. Insofar as this statement
may refer
to something else than the plaintiffs' pleaded cause of
action mentioned in para. [1] above, it is incorrect.
[7]
The judgment further states that the two obligations of the defendant
which were in issue were to provide and maintain the perimeter
wall
in proper condition and applicable standards and to provide and
maintain the service road in proper condition. The court held
that
the perimeter wall and the service road were not part of what the
plaintiffs had bought and that they can only be aspects
in which the
plaintiffs share a communal interest with other owners or members of
the home owners association. Consequently, so
the court held, the
terms sought to be implied by the plaintiffs cannot be implied as
necessary terms as they would import obligations
on the defendant
which are expressly provided to rest with the home owners
association.
[8]
In my view, the court erred in its finding that the terms which the
plaintiffs sought to import were expressly provided to rest
with the
home owners association. It is so that the home owners association
has the obligation in terms of the conditions of sale,
which form
part of the sale agreements, to maintain the "general area"
as defined in the conditions of sale, which includes
the boundary
wall and the internal (service) road, but it has no obligation to
provide or construct anything. It was common cause
that the
obligation to provide and construct the wall and the road was that of
the defendant. The defendant, on the other hand,
has no obligation to
do any maintenance of those facilities.
[9]
The
ratio
of the decision of the court
a quo
was
that the internal road and the perimeter wall were not part of what
the plaintiffs bought. That is obviously correct. But does
it follow
that the terms contended for by the plaintiffs could not be found to
have been tacit terms of the sale agreements?
[10]
In
Alfred McAlpine
&
Son (Pty) Ltd v Transvaal
Provincial Administration 1
the following was said by Corbett AJA
at 533A-B:
"The
practical test to be applied
-
and one which has been
consistently approved and adopted in this Court
-
is that
formulated by SCRUTTON, L.J., in the well known case of Reigate
v Union Manufacturing
Co.,
118 L.T. 479
at p. 483:
"You
must only imply a term if it is necessary in the business sense to
give efficacy to the contract; that is, if it is such
a term that you
can be confident that if at the time the contract was being
negotiated someone had said to the parties: 'What will
happen in such
c1
case?'
they would have both replied: 'Of co
u
rse,
so-and-so. We did not trouble to say that; it is too clear.
[1]
”
This
is often referred to as the "bystander test".
[11]
I have referred to the evidence of the plaintiffs' husbands relating
to the background facts and circumstances attendant upon
the sales
agreements coming into existence. Having regard to those facts and
circumstances, if a bystander had at the time asked
whether the
defendant would ensure, or would have ensured, that the service road
and boundary wall were constructed in a proper
workmanlike manner and
according to proper engineering standards, I have little doubt that
the plaintiffs and the defendant would
have replied:
'Of course.
We did not trouble to say that; it is too clear.'
[12]
As a consequence of the trial court's finding that the internal road
and the perimeter wall were not part of what the plaintiffs
bought
and that the terms sought to be implied could therefore not be
implied as they would import obligations on the defendant
which
rested with the home owners association, it did not consider the
bystander question (whether in respect of its statement
that the
conditions of subdivision were the implied term contended for by the
appellants, or the implied term as pleaded by the
plaintiffs).
[13]
In my view, the court erred in its reasoning. The appellants bought
properties in an upmarket estate and in terms of the conditions
of
sale would automatically become members of the home owners
association and be entitled to the benefits and use of the common
facilities. Even though the plaintiffs did not buy the wall or the
road, there is no reason why the tacit term contended for by
the
plaintiffs cannot in these circumstances be imported into the
contract. One may ask the question: What would have happened
if the
defendant failed to construct the road which, although not expressly
mentioned in the sale agreements, was clearly a tacit
term and was
common cause to be an obligation of the defendant? The answer is
obvious: The plaintiffs would have been entitled
to approach the
court for an order directing the defendant to construct the road. If
it was a tacit term that the defendant would
construct the road, why
would it not also be a tacit term that the road would be constructed
in a proper workmanlike manner and
according to acceptable
engineering standards?
[14]
The test to be applied where absolution is sought at the close of a
plaintiff's case is whether there is evidence upon which
a court,
applying its mind reasonably to such evidence, could or might (not
should, nor ought to) find for the plaintiff.
[2]
A further consideration that is important in the present matter, is
that where a plaintiff's case depends on the interpretation
of a
contract, a court would normally refuse absolution unless the proper
interpretation is clear and beyond question.
[3]
The trial court's interpretation of the sales agreements was that,
because the plaintiffs had not purchased the service road or
the
boundary wall, the tacit term contended for by the plaintiffs could
not be imported into the agreements. That finding, as I
have
indicated, was wrong. A court, applying its mind reasonably to the
evidence presented by the plaintiffs, could or might have
found for
the plaintiffs at the close of their case.
[15]
It follows that the appeal must succeed. The order which I make is
the following:
[a] The appeal is upheld
with costs, such costs to include the costs of the appellants'
application for leave to appeal in the Supreme
Court of Appeal and
the court
a quo.
[b] The order of the
court
a quo
is set aside and replaced with the following
order:
The
defendant's application for absolution from the instance is dismissed
with costs.
_____________________
J
W LOUW
JUDGE
OF THE HIGH COURT
I
agree
_____________________
L
M MOLOPA-SETHOSA
JUDGE
OF THE HIGH COURT
I
agree
_____________________
PM
MABUSE
JUDGE
OF THE HIGH COURT
Counsel
for appellants: Adv. G F Porteous
Instructed
by: Stokes Attorneys, Randburg
Counsel
for first respondent: Adv. E P van Rensburg; Adv. W J Dreyer
Instructed
by: Van Zyl le Roux Inc, Pretoria
[1]
1974 (3) SA 506 (A)
[2]
Claude
Neon Lights (S.A.) Ltd v Daniel
1976
(4) SA 403
(A) 409G-H
[3]
Botha v
Minister van Lande
1967
(1) SA 72
(A) E-F