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[2012] ZAFSHC 6
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Kometsi and Another v Mellet Construction (A58/11) [2012] ZAFSHC 6 (2 February 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No.: A58/11
In the matter between:-
TSELISO ROBIN
KOMETSI
…............................................
1
st
Applicant
MORWESI ALETTA
KOMETSI
….......................................
2
nd
Applicant
and
MELLET CONSTRUCTION
…..............................................
Respondent
_____________________________________________________
CORAM:
RAMPAI, AJP
et
EBRAHIM, J
_____________________________________________________
HEARD
ON:
10 OCTOBER 2011
_____________________________________________________
JUDGMENT
BY:
RAMPAI, AJP
_____________________________________________________
DELIVERED
ON:
2 FEBRUARY 2012
_____________________________________________________
[1] This is an appeal.
The appellants,
qua
defendants in the court
a quo
, were
aggrieved by the judgment of the Bloemfontein District Court which
was delivered on 7 October 2007. On that day the district
court
magistrate granted judgment in favour of the respondent, as the
plaintiff, for the payment of the amount of R60 206,00 interest
thereon and costs of the action.
[2] The respondent
alleged in his particulars of claim that the parties entered into a
written agreement in Bloemfontein on 28 August
2003. The respondent
was obliged to build a double storey residential unit for the
appellants at Goodale Place commonly known as
21A Whites Road,
Waverley, Bloemfontein. The appellants were obliged to pay R495
000,00 in respect of building costs to the respondent
as well as R225
000,00 in respect of the purchase price of the erf. Therefore the sum
total was R720 000,00. The building contract
was subject to certain
conditions and specifications relative to the work schedules. Those
schedules formed part and parcel of
the written building contract –
annexure “a” to the summons.
[3] Firstly, it was a
condition of the aforesaid agreement that the residential unit would
be erected in accordance with building
plans and specifications
tabled before and approved by the local authority, in other words,
Mangaung Local Municipality. Similarly,
it was also a further
condition that the residential unit would likewise be erected in
accordance with the building contract and
specifications tabled
before and approved by the same local authority. There was no
suggestion that such formal processes were
not followed. The
condition was accordingly fulfilled.
[4] Secondly, it was also
a further explicit, tacit or implicit condition of the agreement that
should there be any agreed deviations
from the original schedules and
specifications, the appellants would be liable to the respondent for
the payment of the additional
building costs occasioned by such
deviations or additions. Certain deviations from the contract were
agreed upon and certain alterations
accordingly effected.
[5] Thirdly, it was a
further condition of the agreement that the appellants would apply to
a financial institution for a homeloan
to secure the purchase price
of the residential stand and the building costs of the residential
unit thereon in the sum of R720
000,00. The homeloan in the amount of
R720 000,00 was secured and a substantial portion of the total sum
was paid over to the respondent
by the bank on behalf of the
appellants.
[6] The aforegoing is a
synopsis of undisputed facts as well as facts, which though denied,
cannot be seriously disputed.
[7] Now I turn to the
disputed factual matrix of the pleadings. In its particulars of claim
the respondent alleged that the agreement
contained an explicit,
alternatively a tacit or implicit term, that the appellants would be
liable for the additional building
costs if they should deviate from
the original work schedules and specification list –
vide
paragraph 8.
[8] In their plea, the
appellants denied the aforegoing allegation. They specifically
averred that the parties had agreed that the
construction would be in
terms of the original building contract and that any additions or
deviations would first be mutually agreed
upon before they would be
effected –
vide
paragraph 5.
[9] In its particulars of
claim the respondent further alleged that it carried out its
contractual obligations. Firstly, it alleged
that it duly erected the
residential unit in accordance with the aforesaid building plans and
specifications as per annexure “a”.
Secondly, the
respondent also alleged that it performed extra work, completed the
erection of the house and delivered a complete
residential unit to
the appellants. The extra work was done according to the additional
work schedule as per annexure “b”
–
vide
paragraph 9.
[10] In their plea the
appellants denied the aforegoing allegations. Their pleaded defence
reads:
“
6.1 Except
to admit all the items in Annexure ‘B’ which have been
effected in terms of the contract, Defendants deny
all the additions
which are alleged to have been effected as per agreement between the
parties, alternatively, they deny that they
failed to pay for
additional work agreed upon between the parties, and put the
Plaintiff to the proof thereof.”
[11] The respondent also
alleged in the particulars of claim that the additional building
costs were brought about by the deviations
from the original contract
and specifications (as per annexure “a”). The respondent
alleged that the costs of additional
work (as per annexure “b”)
amounted to R54 545,42. Therefore the total costs of the building
only increased to R549
545,42 –
vide
paragraph 10.
[12] The appellants
denied the aforegoing allegations. They denied all the alleged
additions. They denied the alleged subsequent
agreement to effect
such additions. Moreover, they denied the allegation that they were
contractually obliged to pay for additional
work which was never
mutually agreed upon –
vide
paragraph 6.
[13] The respondent
finally alleged that the appellants paid the sum of R489 338,72 in
respect of the building costs –
vide
paragraph 11.
[14] The appellants
denied that they were also liable to the respondents for the
shortfall of R5 661,28 between the amount of R495
000,00 being the
agreed amount of the building costs and the amount of R489 338,72
being the sum of all payments received from
the bank concerned for
that purpose –
vide
paragraph 7.
[15] Those then were the
facts in dispute. The respondents prayed for judgment in the sum of
R60 206,71 plus interest as well as
the costs of the action whereas
the appellants prayed for the dismissal of such claim with costs. The
trial magistrate found in
favour of the respondents.
[16] The 24 grounds of
appeal may be expediently condensed as follows:
that the court
a quo
erred in finding that the plaintiff, now the respondent, had proved
the quantum of its claim;
that the court
a quo
erred in its analysis of the evidence;
that the court
a quo
erred in its evaluation of the witnesses;
that the court
a quo
erred in finding that the appellants had deviated from the original
contract by seeking certain additions;
that the court
a quo
erred in finding that the respondent had performed additional work
by mutual agreement;
that the court
a quo
misdirect itself by failing to consider certain facts which should
have been considered because they were relevant and by considering
certain facts which should have been disregarded because they were
irrelevant.
[17] The version of the
respondent was narrated by Mr. Marcelle Hamman Mellet. He was the
only witness for the respondent. He testified
that he was the sole
member of the business enterprise called Mellet Construction CC. At
the request of the appellants, he stated:
there were certain
deviations from the original building contract. Some things were
omitted while others were added. Besides the
omissions and additions
there were things that were altered.
[18] While the practical
effect of the omissions was the reduction of the building costs; the
practical effects of the additions
was the increase thereof. So was
the practical effect of the alterations. He captured the deviations
as more fully set out in annexure
“b”. The cash value of
the additions (debits) exceeded that of the deductions (credits).
According to him the total
costs of the additions amounted to the sum
of R151 696,20 and the total costs of the omissions to the sum of R97
150,80. The difference
was R54 545,42 and it represented the amount
due to him by the appellants. The respondent sued for the recovery of
the sum of R60
206,71.
[19] The version of the
appellants was narrated by two witnesses, namely Mr. Tseliso Robin
Kometsi and Ms Morwesi Aletta Kometsi,
the first and the second
appellants respectively. In the court
a quo
the first
appellant’s evidence was that the complete work performed by
the respondent was done according to the initial specifications
schedule; that there were no later deviations from the original
specifications schedule; that all the finishings as itemised in
the
final finishings schedule were included in the original
specifications schedule.
[20] He complained that
the respondent breached the original building contract by charging
them additional costs in connection with
the erection of two fencing
walls whose costs were already included in the general capital of
R495 000,00; that the respondent
tried to cheat them by paving with
inferior and broken bricks instead of proper paving cobles; that,
they exceeded the budgetary
provision according to the original
specifications schedule in respect of the sanitary finishings and the
bathroom finishings,
but averred that they made a direct payment of
R10 000,00 to CTM in respect of such additional sanitary finishings;
that they also
exceeded the budgetary provision according to the
original specifications schedule in respect of the excess of the
electrical fittings,
in other words, lamps and accessories but again
averred that they made a direct payment of R2 837,80 to Herholdt’s
Interior
Designers in order to cover the extra costs of such lamps,
bulbs and accessories.
[21] Finally, he admitted
that the respondent received the sum of R489 000,00 only instead of
the total of R495 000,00 as contractually
agreed. However, he
asserted that the difference of about R6 000,00 represented bank
interest which was quite correctly deducted
from the agreed capital
earmarked for paying the respondent on account of the respondent’s
failure to complete the work within
the period as stipulated in the
contract. He insisted that they gave the respondent no further
instructions over and above the
original instructions as set out in
the original work schedule annexed to the original building contract
other than the extra finishings
they admittedly chose at the
aforesaid two service providers and paid for. He, therefore, denied
that the respondent’s final
account was correct and maintained
that they were not at all indebted to the respondent in the amount of
R60 206,00.
[22] The second
appellant’s direct evidence was very brief. She testified that
the costs of erecting the two concrete walls
to fence their
residential property were included in the guaranteed capital
according to the original specifications schedule annexed
to the
original building contract. She complained that the respondent’s
witness did not bring it to their attention that
the costs of paving
the premises exceeded the budgetary amount as provided for in the
original specifications schedule. She was
unaware of the exact number
of the electrical fittings as per the original specifications
schedule.
[23] According to the
second appellant’s knowledge there were no extras effected to
the property by the respondent besides
the electrical, sanitary and
bathroom fittings. However, she admitted that they paid R10 000,00 to
CTM in respect of the extra
costs of the sanitary and bathroom
fittings and R2 837,00 to Herholdt’s in respect of the extra
light fittings. She admitted
that they made the payments because they
had exceeded the budgetary limits allowed according to the original
specifications scheduled
for such items.
[24] The court
a quo
rejected the evidence of the first appellant as false. The trial
court magistrate found that there was a very big difference between
a
number of items as initially specified according to the original
specifications schedule, annexure “a”, and as eventually
provided according to the final finishings schedule, annexure “b”.
On the one hand the court
a quo
rejected the common version of
the appellants that there were no deviations, mutually agreed upon,
from the original building contract.
On the other hand the court
a
quo
found that there were indeed deviations from the original
building contract and that the additional work performed by the
respondent
was specified in the subsequent agreements collectively
combined and evidenced by the final finishings schedule, annexure
“b”.
[25] In the final
analysis the court
a quo
concluded that the respondent had
proved, on a balance of probabilities, that the respondent deviated
from the original contract,
performed additional works, altered the
original specifications schedule by downscaling and then crediting
the account of the appellants
accordingly. Similarly the court
a
quo
concluded that the respondent established by means of
documentary evidence that the respondent altered the original
specifications
schedule, by upgrading and then debiting the account
of the appellants accordingly. It found that the respondent correctly
reconciled
and quantified the outstanding balance due by the
appellants. With those findings I am unable to differ. An objective
analysis
of the evidence, coupled with an objective evaluation of the
witnesses would not leave any room for findings different from those.
[26] Perhaps it will
serve a good purpose to deal with two or so of the main concerns of
the appellants. In the first place the
fencing. At stake here was the
amount of R16 828,00 –
vide
item 1 annexure “b”.
It is common cause that the vacant property or stand was partially
fenced before the appellants
purchased it from the respondent. The
western and southern boundaries had concrete walls but the eastern
and northern boundaries
had none.
[27] The evidence of the
respondent’s witness was that the respondent provided two walls
in accordance with the original building
contract. Those walls were
on the western and southern boundaries of the plot. However, he
averred that the price of those two
walls was included in the general
capital of R495 000,00, the original package.
[28] The evidence of the
appellants was that they needed two concrete walls since there were
already two existing walls. They wanted
to have their property
completely fenced through the erection of two walls on the eastern
and northern sides thereof. The costs
of those two walls were
included in the original specification schedule. The appellants
disagreed.
[29] The first appellant
admitted, as did the second appellant, that the respondent had
erected the wall on the eastern side of
the property but averred that
the respondent was obliged to do so in terms of the original building
contract (annexure “a”)
and not the alleged subsequent
deviation agreement (annexure “b”).
[30] At par 21: 10 –
22:05 of part 4: the transcript, the following exchange between Mr.
Edeling and the first appellant was
captured:
“
Good. Now
tell his worship where on this contract does it show he must build an
eastern wall? Tell his worship, show us.
--- No, the thing is I,
the
wall that was supposed to have been built was already there
.
There was another wall at the south. Nothing was mentioned of it, so
only one at the other side was mentioned.
I
was expecting to have two walls that were supposed to be built for
me. So the one was already built which doesn’t even belong
to
me.
I am going to argue to his worship
later that you are running away from my question.
You are a
professional man, please answer my question. ---
I am answering as
best I can sir.
”
Indeed the witness was
evasive.
[31] The appellants
dismally failed to show that there was any provision made in the
original specifications schedule for the erection
of the wall on the
eastern boundary of the property. The original specifications
schedule specified that the respondent’s
plot included a brick
wall to the western boundary and middle boundary. The latter
obviously referred to the southern boundary
–
vide
item 2 annexure “a” page 49 part
1: the pleadings.
[32] According to item 3
annexure “a” the plot included a non-electronic entrance
gate to Whites/Goodale. In other words,
the front entrance gate was
supposed to be erected on the eastern boundary which ran parallel to
Whites Road. The provisional costs
thereof were estimated to be R2
250,00. Since the original specifications schedule made this
particular provision for the gate,
the appellants understood the item
to mean that the respondent was tacitly obliged to erect the wall on
the eastern boundary not
only to suspend the envisaged gate but also
to fence off the plot. That was how they understood the contract.
[33] At par 6: 3 –
10 of part 4: transcript, the following exchange between Mr. Khang
and the first appellant was recorded
concerning the significance of
the gate:
“
He testified
that those walls that he built were left out of the specification,
one of the walls was not part of the specification,
what is your
comment to that? ---
It
will be quite strange
because
the wall that was in the middle (indistinct) about it.
The
wall at the front is where the gate was supposed to be attached. So
if there was not going to be any wall I don’t understand
how
the gate was going to be fixed on that wall, so I would not agree
there.
”
[34]
“Do you
you think he will build a wall because he likes just to build walls?”
Mr. Edeling posed the question.
At par 22: 11 – 12
thereof the first appellant answered Mr. Edeling as follows:
“
...
Because
precisely the fact that he was actually allowing the gate for it as
well, where it was going to be mounted on.
”
[35] It follows from the
aforegoing two quotations that the appellants assumed on the strength
of the provision made for the front
entrance gate that the
respondent, by implication, also had to erect the wall to support
such a gate. Their assumption was certainly
wrong. They read a whole
lot more in the particular item of the original specifications
schedule than there really was to read.
The original specifications
schedule expressly mentioned the western and southern brick walls and
that was where it all ended.
[36] Since the original
specifications schedule was completely silent as regards the eastern
and northern boundaries, the most plausible
of all the probable
inferences that could be legitimately drawn from those objective
facts was that the respondent was not contractually
obliged to erect
the eastern and southern brick walls in terms of the original
building contract. The
expressio unius
rule of interpretation
applies. The respondent was obliged to provide two brick walls and
that is precisely what the respondent
did. The appellants needed four
brick walls. They had to pay extra money for the additional two.
[37] There was one more
aspect which heavily tipped the balancing scale against the
appellants in favour of the respondent –
viz
the
estimated costs of R2 250,00 for the gate. It was ridiculous for any
reasonable person to expect that such a modest amount
could be quoted
by a building contractor, a quantity surveyor at that, for two brick
walls as well as an entrance gate for a motorcar.
[38] The first appellant
and the second appellant denied that the respondent erected the
disputed brick walls at their own request
and special instance.
However, they admitted that the respondent had in fact erected such
brick walls to the east and north of
the plot. Asked by counsel for
the respondent as to why the respondent had built such a brick wall
to the eastern boundary, the
first appellant answered that he did not
know. His evidence and that of his wife was that they, at no stage,
gave any subsequent
instructions to the respondent to erect such
walls which was why they queried item 1 of annexure “b”,
in other words
R16 826,40 in respect of the perimeter brick fencing.
[39] It seems improbable
that an experienced building contractor who was also a practising
quantity surveyor such as Mr. Mellet,
would have strayed off the
scope of the agreed scope of the work in terms of the original
building contract and on his own accord
erected two additional
perimeter brick walls. Such a huge deviation was unlikely to have
just fallen out of the air.
[40] The first appellant
admitted that he objected to the respondent’s final finishings
schedule dated 30 June 2004 by way
of an e-mail but said that the
respondent reply letter (exhibit “b”) did not ring a
bell. He admitted that he wanted
a swimming pool and the respondent
quoted R30 000,00 in connection with a swimming pool but denied that
the respondent also quoted
R29 000,00 in connection with the brick
wall. The evidence of the respondent’s witness was that the
first appellant had indeed
requested for a quotation for the two
additional walls and that he reduced the amount from R29 000,00 to
R16 828,40 because the
appellants could not afford the wall of such
superior quality.
[41] Now, the appellants
wanted a swimming pool, but because they told the respondent that
they could not afford it, the respondent
did not go ahead to erect a
swimming pool. This evidence showed that Mr. Mellet did not do as he
pleased as the appellants would
like the world to believe, but that
he rather listened and carried out the instructions of those who had
employed him. It seems
to me that the evidence of the appellants that
they did not ask for a quote and that the respondent did not supply a
quote for
the additional brick walls was justifiably rejected.
[42] It should be
accepted therefore, that the respondent replied the first appellant’s
e-mail by way of a letter (exhibit
“b”) and gave the
appellants an explanation of the amount R16 826,40 and that the
appellants failed to rebut such an
unfavourable letter. From their
failure to set the record straight of a process which they had
initiated, we on appeal, are entitled
to draw an adverse inference.
[43] The appellants
purchased a piece of land from the respondent for residential
purposes. There were already two existing brick
walls. It would
appear that the appellants laboured under the wrong impression that
reference to the two perimeter brick walls
included in the plot was
reference to two perimeter brick walls still to be erected. They were
badly mistaken. Those walls constituted
useful improvements to the
plot. The appellants did not get free benefit of those walls like
manna from heaven. Although it was
not separately specified, the
price of the pre-existing walls was included in the capital of R495
000,00.
[44] The remaining main
aspects of the appeal concerned, among others, certain items of
annexure “b”, sanitary fittings
(item 7), electrical
fittings (item 4), bathroom fittings (item 9), the garage floor
painting (item 3), wooden cupboards (item
2), paving (item 11), tiles
and carpets (item10). The version of the respondent was more
probable, credible and reliable than that
of the appellants as
regards everyone of these aspects. For that reason it was correctly
preferred by the court
a quo
. The findings of the court
a
quo
in connection with these matters cannot be faltered.
[45] T
he
alleged shortfall of R5 661,29 was a very serious bone of contention
both at the trial and on appeal. It will be recalled that
the agreed
capital for the building costs was R495 000,00. The amount was
guaranteed by the Standard Bank. It was common knowledge
between the
parties that the respondent did not receive the full benefit of the
guarantee. What was then the deficit between the
guaranteed capital
and the capital eventually received from the bank? At the trial it
was wrongly accepted by all concerned that
the respondent received
approximately R6 000,00 (R5 661,29 to be precise) less from the
Standard Bank. Consider the statement of
account below.
[46] But for the
additions, the appellants’ account in the respondent’s
books would have looked like this:
Debit Credit
To: Capital agreed upon 720000.00
By: Payment received from bank
28.01.2004 470800.00
By: Payment received from bank
05.03.2004 143500.00
By: Payment received from bank
25.05.2004 89712.54
Per balance 15987.46
____________________
720000.00 720000.00
Amount of the shortfall 15987.46
[47] The aforegoing
represents the state of the account of the appellants in the
respondent’s books had there being no additions.
It follows
from the aforegoing that the respondent actually received from the
Standard Bank R704 012,54 (R720 000,00 – R15
987,46) instead of
the full capital as was guaranteed. To put it differently R720 000,00
less R704 012,54 equals R15 987,46. It
can, therefore, be seen that
the respondent drew R704 012,54 and not R720 000,00 on the
appellants’ bank account.
[48] During
cross-examination the first appellant complained that by 31 December
2003 the bank had already debited his bond account
or homeloan
account by about R15 000,00 interest. Between him and Mr. Edeling the
exchange went like this:
“
Let’s
put it the end of December. --- The bank debited me on the capital
amount to an amount of R15 000.
For interest? --- For interest.
I understand. --- So at the end of the
day I was sitting with an amount of 720 that I still owed the bank.
Capital? --- Capital.”
Could this have been
transfer costs, or the quantity surveyor’s fees or the
conveyancer’s fees or the bank interest
or the collective total
of all these? Possibly. For any of these the appellants were
contractually responsible and liable.
[49] Let us also consider
the following statement of account assuming that there were no
disputed alterations and additions and
that the costs were correctly
quantified.
To: Costs of additions 54545.42
By: Cash received from the Kometsis
10226.25
Per balance
44319.17
54545.42 54545.42
Outstanding balance due by the
Kometsis 44319.17
[50] Now the sum of the
balance as per the final finishings schedule plus the balance as per
the original specifications schedule
is R60 306,63,in other words,
R44 319,17 plus R15 987,46. The former deficit was attributable to an
insufficient payment by the
bank and the latter by the Kometsis.
However, the homeowner is held legally responsible to the builder for
the payments of both.
This is so because the builder did not
personally contract with the bank. In this case the appellants were
contractually obliged
to see to it that at the end of it all the
respondent received R720 000,00 according to the original agreement.
[51] The final
reconciliation of the account can be drawn as follows, taking into
account the costs relative to the final finishings
schedule.
Debit Credit
To: Agreed capital per original
agreement 720000.00
By: Cash received from customer
05.12.2003 10226.25
By: Cash received from bank 28.01.2004
470800.00
By: Cash received from bank 05.03.2004
143500.00
By: Cash received from bank 25.05.2004
89712.54
By: Extra costs of additions 54545.42
Per balance
60306.63
774545.42 774545.42
Outstanding balance due by customer
60306.63
[52] I have earlier
demonstrated that the shortfall in respect of the original
specifications schedule was R15 987,46. When the
direct payment of
R10 226,25 made by the appellants to the respondent was allocated
towards the reduction first, of the bank shortfall,
such shortfall
dropped to R5 761,21 (i.e. R15 987,46 – R10 226,25). The
figure, R5 761,21 was approximately R6 000,00. This
then is the
figure which caused so much confusion at the trial and indeed on
appeal. One may approach the matter from a different
angle. When the
R54 545,42 costs in respect of the final finishing schedule is
deducted from the composite balance of the end result
is
mathematically the same,
viz
R5
761,21. In the final analysis when the reduced shortfall from the
bank, namely R5 761,21 is added to the unreduced costs of the
alteration R54 545,42 the balance still owing by the appellants to
the respondent is precisely R60 306,63 as the aforegoing account
clearly demonstrates. It can be seen, therefore, that it did not
really matter where the appellants were credited for the direct
payment they made.
[53] There was no
substance in the contention of the appellants that they were exempted
by their bank from paying any interest prior
to the date on which
they actually took occupation. Such a practice is foreign to the
practice and customs of the banking industry.
They did not refer to
any particular clause in their homeloan agreement to substantiate
their vehement assertion about that unusual
practice. Moreover, they
called no official from the bank to corroborate their version. Their
evidence on this aspect was, therefore,
hearsay and it was correctly
rejected.
[54] But the appellants
could even have discovered their homeloan bank statements to prove
their allegation, but they did not. He
who alleges has to prove. In
this instance the appellants failed to discharge the onus. On the
contrary the first appellant himself
testified that by 31 December
2003, approximately four months after the signing of the contract,
the bank had already debited their
bond account by R15 000,00. This
materially corroborated the respondent’s contention that the
guaranteed capital was reduced
possibly by the interest due to the
bank attracted by the failure of the appellants to properly service
their bond account. So
much about the cash deficit.
[55] Ordinarily a
building contractor, such as the respondent, who fails to complete
the work within the contract period becomes
liable to the employer
(appellants) in accordance with the agreed rate of penalty. The
building agreement was signed in Bloemfontein
on 28 August 2003. In
this case the intended date of practical completion was 30 November
2003. It appeared that the respondent
completed the work on or about
25 May 2004, being the date on which the appellants were seemingly
given beneficial occupation of
the property. The problem of the
appellants was that they signed away their right to claim
compensation from the respondent for
the delay, however long. The
penalty amount in this case was zero per calendar day -
vide
clause 41.2.8 annexure “a”.
[56] I got the sad
impression that the appellants, on their own, embarked upon an
intricate project about which they virtually had
no knowledge. It
helps to have a lawyer on your side when it comes to big projects
like this with huge financial implications.
It was absurd for them to
contend that the final finishings were included in the original
specifications. As the word suggests,
finishings are final touches or
top-ups. Quite often they are luxurious and not essential items.
[57] There was no grain
of truth in any of the denials of the appellants. In my view the
appeal was groundless. There was no substance
in any of the grounds
of appeal relied upon. In the circumstances I am inclined to dismiss
the appeal. I am not persuaded that
the court
a quo
erred as
alleged or in any other respects whatsoever. The appeal did not bring
anything new to light. It is my considered view
that the trial
magistrate did not commit any appealable misdirection as regards the
facts or the law.
[58] Accordingly, I make
the following order:
57.1 The appeal is
dismissed.
57.2 The judgment of the
court
a quo
delivered on 10 October 2007 is upheld.
57.3 The appellants are
directed to pay the costs of the appeal jointly and severally the one
paying the other to be absolved.
_________________
M. H. RAMPAI, AJP
I concur.
_____________
S. EBRAHIM, J
On behalf of appellants:
Adv. M Khang
Instructed by:
Mphafi Khang Inc.
BLOEMFONTEIN
On behalf of respondent:
Adv. W. J. Edeling
Instructed by:
Bezuidenhouts Inc.
BLOEMFONTEIN
/sp