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[2012] ZAKZDHC 98
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R & R Construction v Gayadeen and Another (5609/2000) [2012] ZAKZDHC 98 (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 the defence 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 liable to 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 continued
and
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. In so far 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 Second Defendants 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