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2012
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[2012] ZAGPPHC 83
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Gani Osman Building Supplies v Brits and Others (A1063/10) [2012] ZAGPPHC 83 (12 April 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, HELD AT PRETORIA)
CASE
NO: A1063/10
DATE:12/04/2012
IN
THE MATTER BETWEEN:
GANI
OSMAN BUILDING
SUPPLIES
.....................................................................
APPELLANT
AND
L
H A
BRITS
.............................................................................................
FIRST
RESPONDENT
JOHAN
BRIST
....................................................................................
SECOND
RESPONDENT
ADELE
BRITS
.........................................................................................
THIRD
RESPONDENT
JUDGMENT
THE
COURT:
[1]
The appellant who is a supplier of building material, instituted an
action against the respondents (first respondent and second
respondent are married to each other and third respondent is their
daughter) for building material they bought and which was not
fully
paid. An amount of R76 350-60 is still outstanding according to
appellant.
[2]
The first and second respondents on the pleadings denied that they
entered into any agreement with the appellant and alleged
that they
did not owe any money to appellant. Third respondent admitted buying
building material from the appellant but denied
that she owed
appellant the amount claimed as he delivered wood, which didn't
comply with SABS standards, contrary to the quotation
that he gave.
She also instituted a counter-claim for R48 000-00, as damages as she
had to repair the roof after the building inspector
refused to
approve the use of black cross timber instead of SABS approved
timber.
[3]
The learned magistrate refused the claim by the appellant and granted
the counter-claim. The appellant was ordered the pay the
costs. The
learned magistrate found that from the amount of R76 350.60 claimed
by the plaintiff, the purchase amount in respect
of the black cross
wood should be deducted. This reduced the amount to R67 341.60.
Furthermore he found that the third respondent
had proved her counter
claim in the amount of R48 000.00. The appellant was ordered to pay
the costs.
[4]
The appellant appeals against that order to this court.
[5]
Evidence was led by Mr Joosub on behalf of the appellant that second
and third respondent's approached him to open an account
as they
required certain building materials. The one dispute between the
parties was who was liable for the payment of the account.
Mr Joosub
insisted that all three respondents were liable and the respondents
insisted that only third respondent was liable. In
the light of the
conclusion that we came to we need not deal with that issue.
[6]
It would seem that the third respondent wanted to build an old age
home on first respondent's property and was assisted in this
venture
both financially and by giving access to the property by both the
first and second respondents. Be that as it may building
material was
required and appellant's quotation was accepted as it was the
cheapest.
[7]
It is common cause that the dispute in this matter pertaining to the
building material deals exclusively with the type of timber
that was
bought and delivered. The quotation, which is common cause between
the parties, clearly makes provision for SABS timber.
Mr Joosub
testified that he informed third respondent at a point that he did
not have any SABS timber and she agreed to take the
so-called black
cross timber, which does not comply with SABS standards. The
uncontested evidence of the third respondent is also
that initially
SABS timber was delivered and used. She adamantly denied ever having
consented to accept black cross timber instead
and testified that in
any event she didn't know the difference and that she worked strictly
from the quotation which was clear
on that particular point. Third
respondent only became aware of the problems with the timber when the
building inspector pointed
it out and her bank refused to grant a
loan as a result.
[8]
It is interesting to note from the evidence that only one of the
invoices indicate that the timber delivered was black cross
timber.
Th\r6 respondent stated that she worked exclusively with the
quotation and that she trusted Mr Joosub to comply with the
requirements set out in the quotation. Miss Gomgree, who is the
secretary to Mr Joosub, testified that regarding this invoice the
third respondent specifically ordered black cross timber. This is
denied by the th\rd respondent.
[9]
It is uncontested that a building inspector would not approve the use
of black cross timber. It follows that the respondent
had no choice
but to replace that with SABS timber and in the process the roof had
to be replaced. Evidence was also led that she
obtained a quotation
to fix the roof but that was too expensive, in the vicinity of R100
000-00 and in the end after cutting her
costs she managed to replace
the timber at a cost of R48 000-00. She personally testified about
the expenses she incurred pertaining
to this, and Mr Omar's
contention that the evidence presented by her was hearsay evidence is
not correct in my view. In any event
she testified that the builder
who assisted her died prior to the trial and therefore she led the
best evidence available. It must
be noted that it was never disputed
that the builder did indeed die.
[10]
All the witnesses testified that black cross timber is cheaper than
SABS timber. According to Mr Joosub the price difference
is in the
vicinity of 10 to 15% less than that of SABS timber. It is however
also the evidence of Mr Joosub that some of the invoices
indicated
the price of R19-50 per meter for SABS standard timber. It is
interesting to note that invoice number 7 for black cross
timber
indicate the price as R20-42 per meter. Mr Joosub testified he had
old stock SABS timber and new stock black cross timber
and that would
explain the discrepancy. This was denied by the witnesses of the
respondent, I am also of the view that this explanation
is highly
unlikely when the actual prices charged are examined.
[11]
All the witnesses testified that black cross timber is cheaper than
SABS timber. According to Mr Joosub the price difference
was in the
vicinity of 10 to 15% less that of SABS timber. Although some of the
invoices indicated the price of R19.50 per meter
for SABS standard
timber, some of the invoices for black cross indicate that it was
sold for a higher price than the SABS, at R20-42.
The plaintiff did
testify that the may have been influenced by price changes and third
respondent conceded that she was informed
of such fact.
[12]
The appellant carries the onus to proof his claim on a preponderance
of probabilities. In this regard the following needs to
be
considered:
a.
the quotation clearly indicates that SABS timber is quoted;
b.
only one of the invoices refers to black cross timber; which amounted
R9009-00.
[13]
In the light of the aforesaid it cannot be accepted that the
appellant succeeded in proving his claim on a preponderance of
probabilities.
[14]
The third respondent had to proof damages in order to succeed with
her counter-claim. She led evidence, as already stated,
that she
investigated different possibilities, rejected the more expensive
possibility and accepted a cheaper solution to problem.
She also led
evidence regarding the expenses she incurred and furthermore it must
be noted that it is common cause at this stage
that the bank did not
accept the use of a lesser standard and that she had no choice but to
replace the timber. In my view only
factual evidence was led in this
regard, and contrary to what Mr Omar suggested no expert evidence was
required or tendered on
behalf of the third respondent.
[15]
In the light of all the facts, we are not convinced that the
magistrate misdirected himself in his findings except that the
order
was not properly articulated to reflect that judgement was granted
for the plaintiff in the amount of R9 341.60 and that
the third
respondent had proved her counter claim of R48 000.00, although that
was the practical effect of the judgment.
[16]
Consequently the appeal is dismissed with costs.
R
G TOLMAY
JUDGE
OF THE HIGH COURT
I
AGREE:
V
V TLHAPI
JUDGE
OF THE HIGH COURT