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[2012] ZAKZDHC 25
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R&R Construction v Gayadeen and Another (5609/2000) [2012] ZAKZDHC 25 (15 May 2012)
IN
THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
Case
No: 5609/2000
In
the matter between:
R&R
CONSTRUCTION
…....................................................................................
Plaintiff
and
NARSINGH
GAYADEEN
…....................................................................
First
Defendant
H.
GAYADEEN aka H.
NARSINGH
…..............................................
Second
Defendant
JUDGMENT
Delivered: 15 May 2012
MBATHA
J
[1] It is common cause in
this action that Plaintiff constructed a dwelling on the property
owned by the First Defendant during
1994. At the time the Plaintiff
concluded the agreement to construct the dwelling with Second
Respondent who is the son of the
First Defendant. First Defendant
provided a written permission for the dwelling to be erected on the
premises owned by him and
it was anticipated that a sub-division of
the property would be done in due course.
[2] Plaintiff erected the
dwelling and it is common cause that he was only paid the sum of
R1800.00. Mr Ronnie Sankar, the sole
proprietor of the Plaintiff,
testified that after completing the building he had problems
obtaining payment from the Second Defendant
and it was agreed that
the Plaintiff would be paid interest at the rate of 15.5% per annum
on the outstanding amount. The excuse
given was that the sub-division
of the land could not be effected. Payment was never forthcoming
despite a great deal of latitude
granted by the Plaintiff. According
to the Plaintiff’s calculations by the time he issued summons
in this matter the outstanding
amount due including interest up to
November 2000 amounted to the sum of R280 662.18 and in this action
this is the amount that
he claims from First and Second Defendants
with interest on this amount at the rate of 15.5% per annum from 1
December 2000 to
date of payment
[3] It became common
cause during the trial that the dwelling was erected in accordance
with the building plans and the only real
issues in dispute are
whether the First Defendant has attracted any liability as he was not
a direct party to the agreement and
secondly whether the claim has
become prescribed as against both Defendants. It was also raised by
thedefence that the dwelling
was erected on the specific
understanding that the Plaintiff would arrange for the sub-division
of the property and assist the
Second Defendant to obtain a bond in
order to fund the payment of the dwelling.
[4] It is trite law that
in the absence of a sub-division of the land the owner of the land,
in this case the First Defendant, would
have become the lawful owner
of the dwelling erected on his property and it is inconceivable that
he would not have known this
and realised since 1994 that he would be
liableto the Plaintiff for the enrichment of his estate by the
erection of the dwelling.I
may say at this stage that I reject the
evidence of the Second Plaintiff that there was this condition that
the Plaintiff would
be responsible for the sub-division of the land
and instrumental in obtaining a bond. It is inconceivable that the
Plaintiff would
have gone to these extremes to secure work and it is
highly improbable that he would have agreed to such terms. Moreover
the Plaintiff
was a good witness and I have no hesitation in
accepting his evidence where it appears to be in conflict with that
of the Second
Defendant.
[5] According to the
Plaintiff the claim had not become prescribed as negotiations for
payment by the Second Defendant continuedand
resulted in abortive
payments by cheques that were never met during 1996.A further
extension was later granted until 10 February
2000. Thereafter and
during September 2000 Mr Ronnie Sankar was approached by Ms S J
Bodasingh, the sister of the Second Defendant
and the daughter of the
First Defendant. According to the Plaintiff she was accompanied by
her husband and explained that she had
a mandate from both Defendants
to secure a solution to the payment problem. Her husband then drafted
an agreement which she signed.
In a nutshell the agreement recorded
that payment of R150 000.00 would be made by either the obtaining of
a bond over the property
or the payment of the sum of R150 000.00 in
three (3) instalments of R50 000.00 each, failing which the amount
claimable in this
action would be pursued.
[6] Ms Bodasingh
testified and denied that she had a mandate from either of the
Defendants to enter into this agreement on their
behalf. Her reasons
were unconvincing and improbable. I accept as a fact that First
Defendant accepted liability for payment of
the dwelling during the
course of the year 1998 as by then it would have been apparent to all
that the Second Defendant was not
going to be in a position to obtain
a bond and the sub-division was not affected. The visit to Mr Sankar
by Ms Bodasingh and her
husband during September 2000 and the
discussion about payment of the dwelling puts beyond doubt any
suggestion by the Defendants
that payment was no longer thought to be
due to the Plaintiff because the matter had become prescribed.
[7] I therefore find as a
fact that the matter had not become prescribed and that the First
Defendant is liable to the Plaintiff
jointly and severally with
Second Defendant, not because of any enrichment to his estate by the
erection of the dwelling on his
property, but because he had assumed
liability for payment. Insofar as any conflict of facts exist that I
did not cater for in
this judgment I need to say that I accept the
evidence of the Plaintiff in all such areas of conflict and reject
that of the Defendants.
[8] I therefore grant the
following order:
(a)There will be judgment
in favour of Plaintiff in the sum of R280 662.18 against First and
SecondDefendants jointly and severally,
the one paying the other to
be absolved.
(b) First and Second
Defendants are ordered to pay the costs of this action jointly and
severally the one paying the other to be
absolved.
____________________
MBATHA J
Date of hearing: 05 April
2011
Date of Judgment: 15 May
2012
Counsel for the
Plaintiff: Adv S. Khan
Instructed by: LEON
PILLAY & ASSOCIATES
450 Mansion House
12 Joe Slovo Street
(Field Street)
DURBAN
Counsel for the
Defendant:s Mr H. Selzer
Instructed by: SELZER
ATTORNEYS
155 Moore Road
DURBAN
5