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[2016] ZAGPPHC 1058
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Die Regspersoon van Villa Portus Salus v Scopeful 66 (Edms) Bpk and Another (A235/2015) [2016] ZAGPPHC 1058 (15 December 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
HIGH COURT, PRETORIA)
15/12/2016
A235/2015
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
DIE
REGSPERSOON VAN VILLA
PORTUS
SALUS
Appellant
and
SCOPEFUL
66 (EDMS)
BPK
1
st
Respondent
MATTHYS
MACHIEL
KRUGER
2
nd
Respondent
JUDGMENT
MAUMELA
J
[1]
The appellant is appealing against the order and judgment of
Magistrate E.C Eckley of the Tlokwe District Court (the court
a
quo),
which was handed down on gth of December 2014. The court
a
quo
dismissed the appellant's claim against the respondents for
payment of a certain amounts of money.
[2]
At the trial, the second respondent admitted the quantum claimed but
denied liability.
[3]
The appellant is a sectional title development ("the
development”) which is situated in Potchefstroom. The first
respondent was appointed as the developer when the development was
constructed. The second respondent was the sole director of
the first
respondent and a trustee of the appellant.
[4]
Appellant contends that the court
a quo
erred in not finding
that it suffered damages. It submits that the court
a quo
erred
in finding that it was not necessary for the appellant to replace the
wooden stairs erected at the property of the appellant.
Appellant
contends further that the court
a quo
erred in finding that
the conduct of the Municipality condoned the conduct of the second
respondent. Further the appellant contends
that the learned
magistrate erred in relying on inadmissible evidence, more especially
the evidence of the respondent's expert
witness, Mr Booysen who
testified outside of the scope of his expert notice. This was
notwithstanding an objection by the appellant.
Lastly, the appellant
contends that the court
a quo
erred in not considering the
provisions of section 23 of the National Building Regulations and
Building Standards Act 103 of 1977.
[5]
Appellant also raised issues with the fact that the magistrate
incorrectly amplified his reasons further after the appeal had
been
filed. The appellant contends that after handing down its judgment,
the court
a quo
becomes
functus officio.
As such the
amplification should be regarded as irrelevant for purposes of this
appeal.
Brief
Factual Background
[6]
In his capacity as director of the first respondent, second
respondent was responsible to have the building plans of the
development
approved.
[7]
In terms of the plans approved by the Tlokwe Municipality ("the
Municipality") in 2003, the set of stairs leading
to a fire
escape door was indicated to be made of steel. However, after the
building was completed, the said stairs were made of
wood. As a
result, the Municipality insisted that the set of access stairs made
of wood should be replaced with steel ones as per
the approved plan.
The reason for the removal was that the approved building plan and
the records of the Municipality reflected
that these stairs should
have been made of steel. On 14
th
April 2010 the
Municipality wrote a letter to the appellant in which it insisted
that the set of stairs consisting of a wooden
structure be replaced
by one made of steel in order to render it compliant with the
applicable building plans which were approved.
Despite the appellant
requesting the respondents to replace the stairs, they did not. The
appellant ended up replacing the stairs
and paying the costs for the
replacement.
[8]
The appellant holds the second respondent liable in terms of section
40 of the Sectional Titles Act
[1]
in his capacity as a former trustee and more specifically on the
basis that he was grossly negligent, alternatively,
mala
fide
by erecting a
structure contrary to the specifications indicated in the approved
buildings plan, alternatively, in erecting a structure
for which
there were no properly approved buildings plans.
[9]
The appellant argues that the second respondent should not be
considered a layman in the field of construction. Appellant further
contends that the second respondent was duty bound to exercise all
care in all his involvement concerning the stairs fitted to
the
building of the development.
[10]
Appellant alleges further that the second respondent, based on his
fiduciary duties created by section 40, was obliged to disclose
to
the appellant that the structure was not erected in terms of the
approved building plans. Appellant contends that at no stage
did the
second respondent indicate that there is a second building plan which
has been approved and which provides for stairs made
of wood.
[11]
Initially the second respondent relied on an occupancy certificate
annexed to the papers herein as "X". At the start
of the
trial it disclosed a plan apparently approved in July 2004. According
to the specifications in this particular plan the
stairs fitted are
to be wooden.
[12]
The second respondent further sought to rely on the principle of
estoppel. In that particular regard second respondent argues
that by
issuing an occupancy certificate, the Municipality made a negligent
representation to the second respondent and that the
second
respondent acted on that misrepresentation to his detriment. The
second respondent makes the point that the amended plans
were
approved and could be relied on for purposes of construction. It has
to be noted that the occupancy certificate applies only
to three of
the six units built in the development. This too is common cause.
Second respondent could not provide any occupancy
certificate for the
remainder of the units.
[13]
On behalf of the appellant, Mr DJ Van Rooyen testified. He told the
court a
quo
that he is employed by the Municipality. His
position within the Municipality is that of "Boubeheersbeampte".
According
to him there was only one version of a building plan within
the Municipality records and that plan has been approved. In that
plan,
the stairs specified for the building are made of steel.
[14]
Dr Van Rooyen confirmed that the occupancy certificate available only
relates to three of the six units. He referred to section
23 of the
National Building Regulations and Building Standards Act
[2]
.
This section provides as follows:
"No approval, permission,
report, certificate act granted, issued or performed in terms of this
Act by or on behalf of any
local authority or the Board in with a
building or the design, erection, demolition or alteration
thereof, shall have the effect that-
(a)
such local authority or
the Board be liable
to
any person for any loss, damage, injury
or death resulting from or arising out of or in any way connected
with the manner in which
such building was designed, erected,
demolished or altered or the material used in the erection of such
building or the quality
of workmanship in the erection, demolition or
alteration of such building;
(b)
the owner of such
building be exempted from the duty to take care and to ensure that
such building be designed, erected, completed,
occupied and used or
demolished or altered in accordance with the provisions of this Act
and any other applicable law;
(c)
any person be exempted
from the provisions of any other law applicable in the area of
jurisdiction of such local authority.
[15]
Van Rooyen told court further that there is a dispute with regard to
which of the plans applies to a specific property. According
to him
the plan which is approved is numbered 103/0238 and it was approved
on 12
th
June 2003.
He said that the additional building plan is numbered 105-0030. The
date on which the plan was stamped is indicated
as 2"d January
2005. It is labelled "herindiening" which means
"re-submission." According to him an approval
of a plan
remains valid for one year. Thereafter it is to be resubmitted
whereupon the building period is extended for a year.
[16]
Van Rooyen told court that in instances where a plan is put as an
amended plan, the Municipality has to apply its mind anew.
It must
consider the plan in its entirety to see whether it accords with the
building regulations. In instances where a plan is
merely resubmitted
as a "herindiening'', the procedure followed is a mere formality
with a view to extend the period over
which the plan is to remain a
subject of consideration and no consideration is given to the merits
and the specifications of the
plan.
[17]
He stated that in this case where the additional plan introduced an
evaluation in the sense of replacing steel-made stairs
with wooden
ones, the safety of the wooden stairs would have been considered.
Amongst others, input would have had to be sought
from the Fire
Department. In this case that was not done. As matters stand the
second plan providing for wooden stairs was never
approved
notwithstanding the fact that it is stamped.
[18]
The second witness to be called by the appellant was Mr Werner
Kaiser. He is the chairperson of the appellant. He told court
that
the appellant was requested by the Municipality to replace the wooden
stairs in order to render the building to be compliant
with the
approved building plan. He was under the impression that the managing
agent requested second respondent to assist him
in doing so.
[19]
The second respondent denied liability. In doing so it did not reveal
that there is an additional plan which provides for wooden
stairs.
Kaiser pointed out that the additional plan providing for wooden
stairs emerged at the start of the trial. Appellant contends
that
this approach demonstrates recklessness and negligence on the part of
the second respondent. Kaiser submits that it should
be borne in mind
that the second respondent was a trustee of the appellant over a
considerable period of time.
[20]
The second respondent testified that he is relatively new to the
aspect of development. He argued that he did not attempt to
mislead
anyone when he changed the material comprising the stairs mounted in
the building from steel to wood. He maintained that
the issuing of
the occupancy certificate led him to believe that no problems would
arise due to the nature of the material of which
the stairs are made.
[21]
However second respondent offered no plausible comment concerning the
fact that the occupancy certificate is in respect of
only three
units. There is no document validating the additional three units
built at the premises. When confronted by reality
second respondent
changed his evidence and stated that there is a second occupancy
certificate but did not produce any proof in
this regard.
[22]
Second respondent testified that although he only realised that at
the resubmission of the plan a lesser fee was payable, his
intention
was not to mislead anyone when he did what is known as
"herindiening". He also argued that the wooden stairs
comply with the plan. He pointed out that the wooden stairs are thick
enough to ensure safety. To that end, he stated that:
"Omdat
hout
as
hy 'n
sekere
dikte voldoen, dan word hy beskou
as
te voldoen".
[23]
Second respondent gave the impression in his evidence that what
matters is the thickness of the material and nothing else.
He
admitted that once he was satisfied with the thickness of the wood,
he need not make further efforts to find out on the compliance
or
otherwise of the wooden stairs.
[24]
Mr AJ Booysen testified on behalf of the second respondent. He
testified that he is the Assistant Head of the Fire Department
of the
Municipality. His expertise was not disputed. He maintained that
wooden stairs would be safe to use in the building. While
the
appellant did not necessarily dispute the assertion that wooden
stairs would be safe to use, it disputed the assertion that
the
specific stairs fitted to the building in issue comply with
requirements. Appellant viewed that the wooden stairs fitted are
not
suitable because they do not conform to the required specifications.
[25]
Under cross-examination, Mr Booysen conceded that the stairs fitted
in the building in issue are inadequate. The specifications
on the
stairs fitted measured at 32 mm where the applicable regulations
prescribed specifications measuring at 50 mm. It was also
indicated
that in the event where the stairs would have been made of solid wood
a reduction of the size of the wood down to 40
mm could be allowable.
Initially the appellant objected when Mr Booysen sought to indicate
the effect of some fire retarding material
but this objection was
later withdrawn.
[26]
Evidence regarding the fire retarding material did not form part of
the notice of the second respondent. The said notice relied
only on
the thickness of the material comprising the stairs. Even where fire
retarding material is used, it is a requirement that
testing be done.
In this case testing was not done.
[27]
It is clear that the court a
quo
took into consideration the
evidence presented by the second respondent to the effect that the
wooden stairs have sufficient thickness
to ensure safety, and that
with fire retarding material applied to them, the adequate safety is
sufficiently ensured.
[28]
In order to arrive at this conclusion, the learned magistrate
admitted evidence into the record which did not form part of
the
second respondent's notice. This the magistrate did despite the
objection on the part of the appellant. This inadmissible evidence
contributed in the magistrate arriving at his decision to the effect
that the stairs do comply with safety requirements. For that
reason
the magistrate found that it was not necessary for the appellant to
replace the stairs.
[29]
Over and above, the magistrate found that the thickness of the stairs
is indicated as 38 mm whereas in reality it measured
at 32 mm. Even
if it measured at 38 mm, evidence proves that it would still be
inadequate. From the above evidence the appellant
presented
sufficient motivation for the need to reconstruct the stairs if
safety was to be insured. In correcting this anomaly
appellant
incurred expenses. In terms of section 40 of the Sectional Titles
Act
[3]
appellant is entitled to claim the said expenses. It means therefore
that where the appellant suffered damages as a result of fittings
to
the building that did not comply with the applicable regulations,
that establishes a valid claim for the benefit of the appellant.
[30]
Section 40 of the Sectional Titles Act reads as follows:
(1)
A trustee of the
body corporate shall stand in a fiduciary relationship to the body
corporate.
(2)
Without prejudice
to the generality of the expression 'fiduciary relationship' the
provisions of subsection (1)shall imply that
a trustee:
(a)
Shall in relation to a body corporate act honestly and in good faith,
and in particular,
(i)
Shall exercise
such powers as he may have to manage or represent the public operate
in the interests and for the benefit of the
body corporate; and
(ii)
Shall not act
without or exceed the powers aforesaid; and
(b)
So
in material conflict between his own interests and those of the
body cooperate in particular,
(i)
Shall not derive
any personal economic benefit to which it is not entitled by reason
of his office as trustee of the body corporate,
from the body
cooperate or any other person in circumstances in which that benefit
is obtained in conflict with the interests of
the body corporate;
(ii)
Shall notify
every other trustee, at the earliest opportunity practicable in the
circumstances of the nature and extent of any direct
or indirect
material interest which he may have in any contract of the body
corporate.
(3)(a) A trustee of
a
body
cooperate was
ma/a
or grossly negligent act or omission has
breached any duty arising from his fiduciary relationship, shall be
liable to the body
corporate for,
(i)
Any loss suffered as
a
result thereof by the body
corporate; or
(ii)
Any economic benefit derived by the trustee by reason thereof.
[31]
In LAWSA 2nd Edition, Vol 24, at paragraph 451, the fiduciary duties
of trustees are discussed as follows:
"This is in accordance
with the common law principle that the person, or controls the asset
of another, holds the power on
behalf of another, almost
a
fiduciary duty towards that person. In terms of the act, the
fiduciary relationship implies firstly that the trustee must act
honestly
and in good faith towards the body cooperate: the trustee
must not exceed his or her powers of management and he or she must
positively
exercise them in the interests and for the benefit of the
body cooperate."
[32]
In the case of
Rosenthal v
Marks
[4]
the court stated:
"Gross
negligence ...... connotes recklessness, an
entire
file
to
give
consideration
to the
consequences
of his actions,
a
total
disregard of duty".
Appellant
argues that the second respondent should not be treated as a
layperson for purposes of deciding this case. He was a developer.
He
therefore has to be assessed on a scale of a reasonable developer.
Appellant submits that the second respondent should be treated
as an
expert in the field of development.
[33]
In LAWSA 2
nd
Edition, Volume 8, Part 1 at paragraph 125,
the following stands written on negligence of an expert:
"The
general test of negligence is adapted to accommodate situations where
skill, being
a
special competence which is the result of
aptitude developed by special training and experience is
acquired. A person who engages in
a
profession, trade,
calling or any other
activity which demands special knowledge
and skill, must not only exercise reasonable care, but measure up to
the standard of competence
of
a
reasonable person professing
such knowledge and skill. The
diligens paterfamilias
is
placed by the reasonable expert and, in assessing the
attributes
required, the court will have regard to the general level of
diligence possessed and exercised at the time by members
of the
branch of the profession to which the practitioner belongs."
It
states further:
"The test has two components: the possession
of necessary knowledge and the exercise of necessary care, skill and
diligence."
[34]
Appellant argues that as a developer the second respondent gave
himself out as an expert, and a developer with the necessary
skill
and competence, not only to do development, but also to do it within
the provisions of the National Building Regulations
and Building
Standards Act. Applicant contends that the second respondent failed
to give consideration to the consequences of his
action, thereby
rendering himself to be in total disregard of his duty. It is argued
that the conduct of the second respondent
deviated to a great extent,
from the appellant's duty of care that should be expected of him.
[35]
In this case it has been found that the second respondent deviated
from an existing plan which was approved. He was duty-bound
to
resubmit the building plans in order to underline (not sure what you
mean by this) the development to the plans. He failed to
provide
occupancy certificate for the totality of the units built. By virtue
of not having complied with the prescribed standards,
the stairs
erected compromised the safety of users. In that way it endangered
public safety.
[36]
When called upon to rectify the anomaly the second respondent
exhibited a care-free attitude. Concerning the defence raised
by the
second respondent in the form of estoppel the following deserves
consideration. The occupancy certificate does not cover
all the units
erected within the premises. As such, even if the second respondent
were to succeed in relying on estoppel, there
would still be a
problem with regard to the additional units not covered by the
occupancy certificate produced. On that basis the
defence of estoppel
does not answer for the entirety of the case the second respondent is
to answer for.
[37]
On the basis of the above the court finds that in not finding that
the appellant suffered damages, the court a
quo
erred. The
magistrate ought to have found the second respondent have been bound
to replace the stairs due to the fact that they
were not compliant
with the specifications indicated in the approved building plans.
[38]
In the result, the appeal must succeed and the following order is
made:
1. The appeal is upheld.
2. The order of the court a quo handed
down on 9th December 2014 is set aside and substituted by the
following order:
'The
second respondent is to pay the appellant the amount of R 61,
690-00'.
3. The second respondent is to pay
interest on the said amount of R 61, 690-00 at the rate of 15.5% per
annum calculated from 14
July 2011.
4. The second respondent is to pay
plaintiff's costs, which costs shall include the cost of counsel on a
Magistrate's Court scale.
5. Second respondent is to pay the
costs of the appeal.
_______________________
T.
A. Maumela
Judge of the High Court
I agree
______________________
N
P Mngqibisa-Thusi
Judge
of the High Court
Appearances:
For
Appellant: Adv
Instructed
by:
For
Second Respondent: Adv
Instructed
by:
[1]
Act 95 of 1986.
[2]
Act No 103 of 1977.
[3]
1986: (Act No 95 of 1986).
[4]
1944 TPD 172
at page 180.