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[2015] ZAWCHC 145
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Ellis and Another v Cilliers N.O and Others (16936/11) [2015] ZAWCHC 145; 2016 (1) SA 293 (WCC) (9 October 2015)
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IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case number:16936/11
DATE: 09 OCTOBER 2015
In the matter between:
EDWARD
ELLIS
................................................................................................................
First
Plaintiff
LISA
ELLIS
.....................................................................................................................
Second
Plaintiff
And
CATHERINE CLARIS CILLIERS
N.O
.......................................................................
First
Defendant
CATHERINE CLARIS
CILLIERS
...........................................................................
Second
Defendant
DELIA DU
TOIT
...........................................................................................................
Third
Defendant
JUDGMENT
BLOMMAERT A J
BACKGROUND
1. This matter was heard as an urgent
application by Louw J on the 10th of October 2011. In terms of the
notice of motion the then
Applicants sought the following relief:
1.1. That this application be heard on
an urgent basis and that the Rules of Court pertaining to time
limits, forms of service and
the like be dispensed with and the
application be heard on an urgent basis in terms of rule 6(12);
1.2. That the sale of [Erf 4……],
[H…….] [H…..], [K……], be set aside
and cancelled;
1.3. That there be restitution of the
purchase price of R1 600 000.00 for the Applicant which amount was
paid by the Applicant to
the First Respondent, in her representative
capacity, alternatively to the Second Respondent, in her personal
capacity, in terms
of Deed of Transfer no. [T2…….]
together with interest and costs within 10 days of date of this
Order;
1.4. That there be restitution to the
Respondent by the Applicants, of the property referred to in prayer 1
above;
1.5. Costs of the application;
1.6. Further and/or alternative relief.
2. On the 23rd of April 2012 Louw J
made the following order having heard counsel for the parties:
“1. The application is referred
to trial, such trial to commence in the Fourth Division of this
Honourable Court on a date
to be arranged with the Registrar.
2. The Notice of Motion shall stand as
a Simple Summons.
3. The answering affidavit shall stand
as a notice of intention to defend.
4. The Applicants shall file their
declaration within 30 days of the date of this order.
5. Thereafter the rules relating to
actions shall apply.
6. The costs of the application to date
stand over for determination at the trial.”
3. Thereafter the pleadings as
prescribed by Louw J were completed and the matter came before me on
the 7th October 2013.
4. In terms of its declaration, the now
Plaintiffs sought the following relief:
4.1. Cancellation of the contract and
restitution of the purchase price;
4.2. Alternatively, reduction of the
purchase price;
4.3. Alternatively, damages;
4.4. Alternatively, cancellation of the
contract, restitution and damages.
5. The factual background to the
dispute is briefly that Plaintiffs bought a wooden house in [K……],
known as [Erf
4……] [H…..] [H…..] (“the
house”), and transfer was effected on 24 January 2011. On 7
March
2011 Plaintiffs started renovating the house to suit their
specific needs. In essence they wanted the lounge, kitchen and
dining
area to be, so-called “open plan”. They started
in the kitchen by removing the kitchen cupboards. Upon doing this
they noticed that two sections of the floor had been cut out and
later replaced so as to create access to the area below the floor.
I
point out that the house is built in such a way that the back of the
house is built into a slope and the front is on so-called
“stilts”.
Apparent in the kitchen, over and above the sections of the floor
that had been cut out to gain access to
the underside, was the bowing
of the floor. The floor had subsided at the outer edges, with the
result that the central part was
higher than the sides. Faced with
this revelation the Plaintiffs consulted an expert who suggested
removal of the floor boards
in order to ascertain what the problem
was.
6. Plaintiff’s case is that, upon
removing the floor boards of the house it became apparent to them
that the house suffered
from a number of defects, for instance that
the poles supporting the structure of the timber house, the beams and
floor joists
(hereinafter “the “foundation”) had
severely decayed, with the result that the house had subsided up to
90 millimetres
on the northern side. The result of this, according
to Plaintiff, was that the house was no longer level.
7. Furthermore the Plaintiffs allege
that a cement screed had been applied over the timber flooring which
had the effect of concealing
the subsidence of the south-west corner
of the house and that a false ceiling had been constructed under and
suspended from the
original ceiling (being the floor above) in order
to create the illusion that the house was in fact level. (the
“levelling
treatment”)
8. Plaintiffs also allege that “NUTEC”
cladding was added to the outside of the house to conceal the
subsidence and
that the lounge floor was raised by the use of wooden
wedges which again had the effect of concealing the subsidence of
that section
of the house.
9. From the pleadings it appears that
Defendants denied knowledge of the defects relating to the
foundation. As to the levelling
treatment, they deny that one or
more of all the alleged defects do in fact constitute defects.
10. Defendants further admit that they
applied a cement screed approximately 10 years before the urgent
application was launched
and did so with a “view to level the
floor”.
11. Furthermore the Defendants admit
that they installed a false wooden ceiling to the floor above with a
view to constructing a
level ceiling, but maintained that this was
done for aesthetic reasons only, more pertinently, that such a
levelling of the ceilings
does not constitute a defect.
12. As to the issue of the “NUTEC”
cladding (“the cladding”) done on the outside of the
house, the allegations
by the Defendants is that this was done to
save on painting which would otherwise have been necessary every 3
years.
13. The Defendants furthermore alleged
that the wooden wedges used to level the lounge floor, did not
constitute a defect and was
rather an improvement and had been done
for aesthetic purposes.
14. Further alleged defects were
pleaded but, for the purposes hereof, I do not consider it necessary
to deal with all the alleged
defects.
15. It is to be noted that the contract
on which this claim is based contained a “voetstoots”
clause which reads as
follows:
“The property is sold as it now
stands (i.e. voetstoots) and according to the deed(s) of Transfer and
diagram (s). The Seller
shall not be liable for any deficiency in
the extent of the property nor shall he benefit from any excess.
Neither the Seller
nor his Agent shall be responsible for any
defects, whether latent or patent, nor shall they be answerable for
any warranties either
express or implied. This Offer to Purchase
constitutes the only contract between the Seller and the Purchaser in
respect of the
Sale and the Purchase of the above described property
shares and no variations may be made unless reduced to writing and
signed
by both parties. The Purchaser confirms having satisfied
himself with the condition of the property by personal inspection or
by a person on his behalf, duly authorised”.
16. It is trite that to avoid the
consequences of such a “voetstoot” clause, the Purchaser
must show, not only that
the Seller knew of the latent defect and did
not disclose it, but also that he or she deliberately concealed it
with the intention
to defraud.
17. In Odendaal v Ferraris
2009 (4) SA
313
(SCA) Cachalia J A puts it as follows at page 323A - B:
“It is trite that if a buyer
hopes to avoid the consequences of a voetstoots sale, he must show
not only that the seller knew
of the latent defect and did not
disclose it, but also that he or she deliberately concealed it with
the intention to defraud (dolo
malo). Where a seller recklessly
tells half-truths or knows the facts, but does not reveal them
because he or she has not bothered
to consider the significance, this
may also amount to fraud. But as the Court has said fraud will not
lightly be inferred, especially
when sought to be established in
motion proceedings. And where a party seeks to do so the allegations
must be clear and the facts
upon which the inference is sought to be
drawn succinctly stated.”
18. In this matter only 2 witnesses
testified, to wit the Second Plaintiff and an expert in wooden
construction of houses, a Mr
Keevey on behalf of the Plaintiffs. Mr
Keevey was also the person originally instructed by Plaintiffs, when
the problem in the
kitchen floor was first noticed.
19. After applying for absolution
(which application was refused), Defendant closed its case.
20. The record of the evidence is
somewhat confusing in that Second Plaintiffs’ evidence starts
at page 1 and Mr Keevey’s
evidence also starts at 1. I will
therefore in accordance with the heads of argument by Mr Potgieter SC
(who appeared for the
Defendant) refer to the first volume of the
evidence as “Record” and the second volume of the
evidence as “Transcript”.
21. As noted hereinabove this matter
was preceded by an urgent application in which full papers were
filed.
22. To my mind the evidence itself did
not differ materially from the affidavits in the application and,
where necessary, I will
refer interchangeably to the application and
the evidence. Obviously the evidence is the only source on which
this Court can rely
but insofar as they echo each other, I will refer
to both.
23. I need to say something about the
way in which this trial was conducted. It spanned a number of days
with a number of postponements
which were occasioned by reasons not
always within the parties’ control. However, from the very
outset I warned the parties
that this house, the subject matter of
the dispute, was rapidly becoming the most expensive house in [K……]
and that
they should therefore attempt to curtail the litigation.
This sadly fell on deaf ears and I was inter alia confronted with an
application for my recusal by the Defendant, which application I
refused.
24. To say the least, and the record
will bear me out, this was acrimonious litigation at its worst. I am
not at this stage going
to apportion blame for the conduct in the
matter, but point out that I did warn the parties that my displeasure
at how the litigation
was being conducted would be met by an
appropriate cost order. I will return to this issue at a later
stage.
25. From the evidence and the exhibits,
more notably, photographs handed in and on which evidence was lead,
two things are patently
obvious:
25.1. Firstly, that the foundation was
severely decayed. On any approach to the matter, this was indeed a
latent defect and the
Defendants admitted as much during the course
of the trial. Defendants’ defence to this was that they were
not aware of
the state of the foundation and therefore they did not
have the requisite intention to defraud as set out herein above, with
the
consequence that they were protected by the “voetstoots”
clause;
25.2. It is also clear and, as pointed
out herein above accepted by Defendant that certain remedial work had
been done to the house.
It is Defendants’ case that his was
inter alia for aesthetic reasons and for practical reasons relating
to painting which
did not entail a latent defect and therefore, no
matter what the intention was, the seller did not consider them to be
latent defects
and therefore could not have the necessary intention
to conceal them.
26. What is accepted in the papers and
on the evidence is that Defendant was aware of the levelling
treatment done to the house.
In fact Second Defendant’s late
husband who was somewhat of a handy man did the work himself.
27. Fairly late in the proceedings, the
parties sought an order separating the issues of merits of the
dispute from the quantum.
This request was granted by myself.
28. Consequently, on my understanding
of the matter it is unnecessary for me to deal with the specific
relief sought by the parties
and only to deal with the issue as to
whether the Plaintiffs are entitled to relief on the merits. In
other words, the crisp
issue for decision is whether the alleged
defects were defects, whether they were latent or not and whether the
voetstoots clause
protects the Defendants.
THE LEVELLING OF THE FLOORS AND
CEILINGS (“THE LEVELLING TREATMENT”)
29. It is clear from the Application as
well as the evidence that certain of the floors of the house were
unlevel and these were
levelled by means of a cement screed which was
poured over the existing wooden floors of the house towards the
southern side.
Wooden wedges which were skilfully cut and inserted
in the lounge area assisted in levelling the floor. Thereafter a
so-called
“wall to wall” carpet was applied over the
screed. So too, the ceilings which were as a consequence of the
correction
of the floor now unlevel were levelled by means of a false
ceiling beneath the normal ceiling height. When I refer to the
normal
ceiling, that is the floor separating the upstairs part from
the downstairs part, it being a double storey house.
30. The Defendants’ approach is
perhaps best summed up by the following, which appears from its
answering affidavit in the
Application:
“I do, however, wish to reiterate
that there is no question of any latent defects and likewise no
question of defects. The
Applicants have sought to elevate work
which was done for aesthetic purposes to fraudulent conduct aimed at
concealing latent defects.
Levelling the floor which was built
unlevel can never constitute a latent defect. The same applies to
all the levelling work
done by my husband whether or not to achieve
level surfaces or the appearance of levelled surfaces”.
31. Although the pleadings are somewhat
inelegant, the aforesaid approach by Defendant as well as the
evidence make it clear that
this issue was well and truly ventilated
before this Court. I am thus of the view that the issue raised
herein below is covered
by the pleadings.
32. The aforesaid raises the issue as
to what precisely is a latent defect. In Holmdene Brickworks (Pty)
Ltd v Roberts Construction
Co Ltd
1977 (3) SA 670
(A) Corbet JA at
683 – 684A puts it as follows:
“Broadly speaking in this context
a defect may be described as an abnormal quality or attribute which
destroys or substantially
impairs the utility or effectiveness of a
res vendita, for the purposes for which it has been sold or for which
it is commonly
used.... Such a defect is latent when it is one which
is not visible or discoverable upon an inspection of the res
vendita”.
33. As pointed out in Odendaal v
Ferraris opcit at page 321C, the question of the nature of a defect
which would fall within the
scope of a voetstoots clause was left
open in Ornelas v Andrew’s Café and another
1980 (1) SA
378
W at page 388G to 390C. However, Cachalia JA did express the
following opinion in Odendaal v Ferraris at page 321C:
“In a broad sense, any
imperfection may be described as a defect. Whether the notion of a
defect is to be restricted only
to physical attributes of the merx or
to apply more broadly to extraneous factors affecting its use or
value has generated discontent
and additional opinion”.
34. Professor Kerr in LAWSA Second
Edition, Second Reissue Vol 24 at paragraph 36 describes the approach
of our Courts as to the
problem of identifying a defect as being a
“liberal approach”. Also referred to by Cachalia JA in
Odendaal v Ferraris
op cit at page 321C as the “broad sense.”
35. An example is Odendaal v Ferraris
op cit where it was held that the absence of statutory approval to
make building alterations
to a property coupled with problems in the
structure of the alterations constituted a latent defect. In essence
the Court found
that any material imperfection which prevented or
hindered the ordinary common use of the res vendita was an aedilition
defect.
(at page 322A)
36. So too in Glaston House (Pty) Ltd v
Inag
1977 (2) SA 846A
the Court took a broad view of what constituted
a latent defect and there held that the existence of a sculpture
within its pediment
and cornice, which had been declared a special
national monument, and which was embedded in a dilapidated building,
thus precluding
the redevelopment for which the property had been
bought, was a latent defect. The reasoning of the Court was that the
sculpture,
even though valuable in itself and therefore hardly a
physical defect hindered the use to which the property was to be put.
(See
also Odendaal v Ferraris opcit at page 321F - 322A).
37. This lead the Supreme Court of
Appeal in Odendaal v Ferraris to conclude as follows:
“It is now settled that any
material imperfection preventing or hindering the ordinary or common
use of the res vendita is
an aedilition defect” (at page
322A).”
38. This in turn raises the issue as to
what is the ordinary use that the property was being used for. In
other words did the fact
that the floors had been levelled hinder the
ordinary or common use of the res vendita.
39. The Defendant alleges that the
levelling of the floors was also done purely for aesthetic reasons
and therefore did not hinder
the ordinary common use of the res
vendita.
40. From the aforesaid it seems
apparent that the concept of what can be regarded as an imperfection,
preventing or hindering the
ordinary common use of the res vendita,
is not a static concept. It will change as style, custom and other
factors in modern living
changes. As Professor Kerr has put it, a
“liberal approach” is to be adopted.
41. In my view the law should take
cognisance of the fact that, in present times, the question of
renovating a home to improve it
or to change it to suit the lifestyle
of the occupants is common practice. More so where the buyers, as in
the present case were
a young couple, the wife being pregnant with
her first child.
42. Wooden homes also lend themselves
to easy renovation. These homes have walls which can be moved easily
and the spaces can be
reconfigured at very little cost as opposed to
a brick home.
43. In the present matter it is
patently obvious that such renovation by the Plaintiffs would have
been met with a very real problem
of having cement screed over wooden
floors. So too, removing the so-called false ceiling to expose the
rafters, which they alleged
they found aesthetically more pleasing,
would have created problems.
44. In Curtain Crafts (Pty) Ltd v
Wilson
1969 (4) SA 221(E)
Addelson J held that the purpose for which
an object is bought can influence the question of whether or not it
is a defect. The
Learned Judge at page 223B says:
“In my view an article purchased
can only be described as a defect giving rise to legal action by the
purchaser if it is shown
that such state is of a type or nature which
a reasonable man would not expect to exist in other articles of
substantial identity,
with the article purchased.”
45. In the present matter the evidence
makes it clear that the Plaintiffs bought the property to live in.
To my mind a reasonable
man would expect to be able to renovate such
a home.
46. As pointed out before this could
not be done in the present matter due to the extensive covering of
the floors by cement screed.
This cement screed and false ceilings,
the reasonable man would certainly not expect to find in a house.
47. It is precisely the attempt to do
these renovations that revealed the unhealthy state of the
foundation, which it is common
cause between the parties, is a latent
defect.
48. I am thus of the view that the
unlevel floors was a defect which only the Defendants knew about and
in my view these defects
“hindered the ordinary or common use
of the res vendita”.
49. Second Plaintiff testified
repeatedly that she did not want a house with unlevel floors. The
following is a common refrain
in her evidence:
“We would not have elected to buy
an unlevel house” (see record, p 168 (8)) and
“The house was unlevel and that
is what they should have disclosed” (see record, p 476 (17 –
25)
50. The next question is, should the
Defendant have told the Plaintiff about the unlevel floors. To my
mind this falls squarely
within the following dictum from Odendaal v
Ferraris op cit at page 323B where the Learned Judge Cachalia A J
says:
“Where a seller recklessly tells
a half truth or knows the facts but does not reveal them because he
or she has not bothered
to consider their significance this may also
amount to fraud”.
51. It is to be remembered that the
unlevel floors were not confined to one room and that, in fact,
carpets had been laid over the
unlevel floors and in the case of the
passage leading to the bathroom, tiles had been placed over the
wooden floors that had been
levelled by means of a cement screed.
52. Second Defendant witnessed her
husband doing these repairs and they were apparently done after they
had already been living
in the house for a number of years.
53. Clearly the unlevel floors were of
a concern to the Defendant, whether it was for aesthetic reasons or
not, we shall not know
as the Second Defendant failed to testify.
54. As Second Plaintiff put it during
her cross examination “if there had been no defect her husband
would have had nothing
to level” (record, p 267 (2))
55. It is clear to me that Defendants
never considered the significance of telling the Plaintiff this and
that, as set out hereinabove,
she should have done so. In my view her
actions constituted the necessary intention to defeat the provisions
of the voetstoots
clause.
56. As stated herein above the Second
Defendant did not testify. That she was not well medically was made
clear by counsel for
the Second Defendant. However, no attempt was
made to justify her non-appearance on health grounds. I can only
assume that it
was a conscious decision on her part not to testify.
57. Second Plaintiff testified
repeatedly that they would not have bought the house had they known
the floor was not level. Mr
Potgieter SC on behalf of the Second
Plaintiff sought to persuade me that Second Defendant was a bad
witness who embellished her
predicament. I cannot agree. She was
clear, unambiguous and, as far as I am concerned, an excellent
witness. She certainly did
not seek to exaggerate her position. I
have no reason to doubt her evidence.
58. The fact that the Second Defendant
did not testify leaves a number of issues unclear, such as inter alia
exactly when the remedial
work was done to the house, why and when
linoleum was placed on the kitchen floor to cover up the areas that
had been cut in the
floor, and what damage had been caused by the
alleged water leak below the kitchen floor. (It was put to the
Second Plaintiff
that this alleged leak necessitated the need to
access the area below the kitchen floor).
59. Second Defendant’s failure to
address these issues can only lead to the conclusion that Second
Defendant must have known,
or at least have anticipated, that had she
informed the buyer of the unlevel floor, Plaintiffs would not have
bought the house.
At the very least they would have inspected the
foundation which would have revealed the rot underneath. To my mind
Plaintiffs
must be given the benefit of the doubt, which doubt could
have been rectified by Second Defendant’s evidence.
AN ALTERNATIVE APPROACH
60. Even if I am wrong in accepting the
so-called “liberal approach” to the meaning of a latent
defect I am fortified
in my view by the decision in Dibley v Furter
1951 (4) SA 71
(C).
61. The facts in that matter were
briefly that the Plaintiff had bought a small farm. Unbeknown to him
there had been a number
of graves on the farm. These graves had been
ploughed over and there was nothing to indicate their presence. In
fact the area
where the graves had been was being used as farm land.
62. Van Zyl J after a thorough review
of the old authorities concluded that the Plaintiff did not establish
that the existence of
the graves was a redhibitory defect, Plaintiff
was therefore not entitled to any aedilition relief.
63. It is to be remembered that this
matter was decided in 1951 when the more “conservative”
approach to what is a latent
defect prevailed. I have my doubts
whether this will still be the case in the light of today’s
more “liberal”
approach.
64. However, this was not the end of
the matter. Van Zyl J then considered an alternative cause of
action, namely fraud.
65. Van Zyl J at page 86G quotes the
following from Pothiers “Treatise on Contract of Sale”,
2.2 p 141 (Cushing’s
translation) section 234 with approval
“Though the rules of good faith,
in many of the affairs of civil society, extend no further than to
prohibit us from falsehood,
but permit us to refrain from discovery
to others that which they have an interest in knowing, when we have
an equal interest in
conceding it from them; yet, in contracts of
mutual interest, of the number of which is the contract of sale, good
faith prohibits
not only falsehood, but all suppression of
everything, which he with whom we contract, has an interest in
knowing, touching the
thing which makes object of the contract ......
In making an application of these
principles to the contract of sale, it follows, that the seller is
obliged to declare all that
he knows touching the thing sold to the
buyer, who has an interest in knowing it; and, that by omitting to do
so, he offends against
good faith, which ought to govern this
contract”.
66. He also quoted Section 235 with
approval which reads as follows:
“According to these principles, a
seller is bound not to suppress any of the defects of the thing,
which are within his knowledge,
though they are not redhibitory, but
of such a nature, that the buyer would not be allowed to complain of
them if the seller were
ignorant of their existence....” (at
page 87A)
67. Van Zyl J then at page 87F
concludes as follows:
“It seems therefore to me that a
defect, to give rise to the obligation to disclose, need not be a
redhibitory one - i.e.
one giving rise to aedilition relief –
provided that its non-disclosure would have the effect of placing the
parties on unequal
terms, and that when this latter takes place is
only in cases where the buyer has been really overreached that relief
must be granted.”
68. Applying the aforesaid to the facts
of the matter Van Zyl J finds at page 88D as follows:
”The presence of the graves on
this property is a circumstance which in my opinion is so peculiar
that it should be disclosed
to enable the parties to contract on
equal terms”.
69. Finally Van Zyl J concludes as
follows at page 89A – D:
“I am of the opinion that
Defendants knew that the presence of the graves on the property was a
circumstance, attaching to
the property, of a very peculiar nature
such as one would not normally expect to find on a property of that
kind. I am also satisfied
that the Defendant knew that if this fact
were made known to perspective buyers they might not wish to buy.
And I am satisfied
that the Defendant knew that the Plaintiff did not
know, nor had any reason to suspect, that a portion of the property
had been
used as a graveyard. I am also satisfied that at the time
of the sale the Defendant did not inform the Plaintiff of the graves
because he thought that is the Plaintiff knew he might not buy. Due
to the peculiar nature of the defect in the property the Defendant,
in my opinion, knew that the Plaintiff might be labouring under a
misconception as of the true nature of the thing that he was
buying
and he did not inform him because he thought that if he did, the
Plaintiff might no longer want to buy. The above course
of action
is, in my opinion, the same as taking advantage of another’s
mistake in order to bring about a contract.”
70. What appears from the aforesaid is
that there exists for lack of a better word a “parallel
obligation” over and
above that contained in the aedilition
remedies to disclose unusual or abnormal qualities of the res
vendita.
71. In my view the present matter is
similar to that in Dibley v Furter op cit. Even if Defendants did
not think uneven floors
were a defect (which for reasons stated
hereinabove, I do not believe) it was such an unusual feature that
she should have revealed
it. It certainly was a most unusual feature
which made renovation of the house exceptionally difficult. That
Plaintiffs had
an interest in knowing about the cement screed on the
floors and the false ceilings, seems to me to be obvious.
72. As stated previously Louw J ordered
the Plaintiff to file a declaration. In my view the pleadings
although somewhat inelegantly
pleaded covers the aforesaid, what I
have called the parallel duty to disclose. Certainly all these
issues were dealt with in
evidence before me.
THE EVIDENCE
73. From the aforesaid it is clear that
I have hardly referred to the evidence led during the trial. The
reason is that I considered
the facts established during the
application and confirmed to a large extent during evidence as well
as the admissions contained
in the answering affidavit by Second
Defendant, as sufficient to deal with this “leg” of the
matter. Detailed and
sometimes laborious cross examination based on
the photographic exhibits took up a considerable time. These related
to a large
degree to the extent of the rot under the house. As
stated previously, such rot is obvious to any viewer of the
photographs.
Despite many attempts by me to curtail the duration of
the trial, it was met with no success.
74. In my view, the admitted knowledge
of the unlevel floor by the Second Defendant and the failure to
inform the Plaintiffs of
the remedial treatment, undertaken by
Defendants is a latent defect. This was admitted. The fact that, as
a result of the discovery
of the remedial treatment, it was found
that the foundation was rotten, does not change the fact that in my
view an unlevel floor
is a latent defect. In order to rectify the
defect the evidence established that repairs had to be done to the
foundation under
the house. How that might be done and the cost
involved form part of the quantum and has been left over for later
determination.
It could well be that the evidence led will become
relevant at a later stage as stated previously the issue of quantum
was only
separated at very late stage of the proceedings.
COSTS INCLUDING THE COSTS OF THE
APPLICATION AND FURTHER REMEDIES
75. As stated previously this was
acrimonious litigation at its worst. Defendants certainly did not
make matters any easier for
Plaintiffs. There is of course no
obligation on Defendants to do so. However, some collegiality would
have gone a long way to
curtailing the duration of the trial.
76. Both the Plaintiff and Defendant
asked for costs on an attorney / client scale. As is trite, costs
are subject to judicial
discretion. As tempted as I am to apportion
blame, I have decided on the normal costs order. Neither party is
entirely blameless
nor is it appropriate to consider which party was
to blame for which postponement. To my mind the costs must follow
the result.
77. As stated above Louw J stood over
the issue of the costs of the urgent application. Bearing in mind my
judicial discretion
and in view of the fact that no party was
entirely successful in the urgent application, I make no order as to
costs for the urgent
application.
78. The issue of the remedies sought by
Plaintiff and the possible bar thereto as a result of Plaintiff’s
earlier election
of restitution in the urgent application, is also
left over for later determination as belonging in my view more
appropriately
to the quantum issue.
79. In the result I make the following
order:
79.1. Plaintiffs succeeds on the merits
for such relief as he can prove. (subject to paragraph 78 above);
79.2. Defendant is ordered to pay
Plaintiff’s costs on the High Court scale, such costs to
include the costs of Second Plaintiff
who is declared a necessary
witness and of Mr Keevey, Plaintiff’s expert.
BLOMMAERT A J
CAPE TOWN