Republic of south africa office of the chief justice

REPUBLIC OF SOUTH AFRICA


OFFICE OF THE CHIEF JUSTICE

(GAUTENG DIVISION, PRETORIA)

CASE NO: 49544/14

DELETE WHICHEVER IS NOT APPLICABLE (1) REPORTABLE: YES / NO. (2) OF INTEREST TO OTHER JUDGES: YES / NO. (3) REVISED. …………………… ......................................... DATE SIGNATURE

IN THE MATTER BETWEEN

EMFULENI GOLF ESTATE (PTY) LTD Applicant

and

VINBOSCH CONSTRUCTION CC Respondent

JUDGMENT
LEGODI J
HEARD ON: 17 AUGUST 2015

JUDGMENT HANDED DOWN: 25 AUGUST 2015

[1] The applicant, Emfuleni Golf Estate (PTY) Ltd (developer), is claiming by way of an application an amount of R110 000 against Vinbosch Construction CC (a building contractor) based on an alleged breach of a written agreement concluded between the building contractor and the developer on 27 July 2013. In the alternative the applicant wants the contractor to be ordered to furnish all such information as envisaged in clauses 2 and 3 of the agreement.

[2] Clauses 2 and 3 of the written agreement read as follows:

“2. 5% of the Building Contract Price plus VAT will be payable by the Builder to Emfuleni Golf Estate (Pty) Limited. Any tender price must be inclusive of this fee. In the event the builder uses the Estate architect for the design of the plans, this fee will be reduced to 3%.

3. The accepted tender price must be immediately advised to EGE as soon as it is agreed. The tender price is inclusive of all Builders PC allowances and must cover all building costs necessary to constitute a completed dwelling so as to facilitate the issuing of an occupational certificate”.

[3] The application is resisted by the contractor who is in the business of building. It contends that it was misled to enter into an agreement with the developer and that should it have known of the true facts, it would not have entered into an agreement in favour of the developer.

[4] As a background, the applicant is a developer of the Emfuleni golf Estate development which comprises inter alia, a golf course, club house, recreational facility, houses and sectional title scheme developments. The estate has a Homeowners Association which is a common law corporate body run by its trustees in accordance with its constitution, which constitution forms part of the papers herein.

[5] During or about mid-2013, on behalf of the contractor, Mr G V Bosch a member of the contractor, contacted one Annetjie Andrews, the secretary of the Emfuleni Home Owners Association and informed her that contractor wanted to become an approved builder on the estate. He was then informed to submit the following document to Home Owners Association: Contractor’s CV, company profile, NHBRC Certificate and references which documents were duly provided. Bosch was also informed that the contractor needed to furnish the Homeowners Association before commencing with any building activities on site with the municipal approval signed, set of architectural building plans, NHBRC enrolment certificate, site toilets, and the site must be fenced off and have a signage stating the no entry to the construction site.

[6] The nature of the alleged representation which induced the contractor to conclude an agreement with developer is briefly that:

6.1 Annatjie acting on the instruction of the developer or as an agent of the developer, stated that the contractor and any other contractor for that matter, must first be approved as a builder by the developer.

6.2 Annetjie further informed that it was a direct instruction and requirement of Barkett on behalf of the developer the Rules and Constitution of the Home Owners Association of Emfuleni Golf Estate to sign agreement with developer, otherwise no contract would be allowed to build on the estate and would also be refused access to estate for that purpose.

[7] In paragraph 13 of the answering affidavit, the contractor concluded as follows:

“As I was, on behalf of the Respondent deceived by the false representation of Annatjie acting on direct instructions of Barkett (on behalf of the applicant) and further pressurized, unduly influenced and falsely informed by Annatjie, that it was requirement in terms of the Constitution and Rules of the HOA to sign the agreement to become an approved builder on the Estate, Annatjie made it clear to me that I had no other option to sign the agreement, I proceeded to sign”.

[8] Having signed the agreement as aforesaid, the contractor was subsequently approved to build houses within the estate and was appointed by Mr Niel Botha of stand 1537 to do the construction of his house. The claim for R110 000 is based on the construction of this house.

[9] The developer in its replying affidavit did not specifically deal with the allegations of representation set out in paragraphs 12 and 13 of the answering affidavit. I think understandably so, as it would appear later hereunder. Instead, in paragraph 2.4 of the replying affidavit, it is inter alia, stated:

“2.4 I am not in a position to comment on the Deponent Bosch’s assertion that Annetje “falsely” informed Bosch that the requirement to sign the agreement to become an approved builder was derived from the constitution and rules of the HOA. It is further evident from the respondent’s opposing affidavit that Annatjie is employed by the HOA and not in the employment of Emfuleni Golf Estate (PTY) LTd. However, be that as it may, Bosch willingly and out of his own free will signed the agreement. Even if Annetjie inadvertently misrepresented the underlying reason for entering into “E1”. I submit that such misrepresentation is of no consequence…”

[10] Of importance, however, is the letter of the 14 November 2008 addressed to the contractor’s attorneys by the developer’s attorneys. I find it necessary to set out in full what is stated in paragraphs 3.4, 4 and 6 of the said letter:

“3.4 …In the meantime, a number of building contractors were approved (Mr Vincent Bosch is well aware of this) and a building contractor is not allowed on the estate unless he has an agreement with the developer. This is, inter alia, to ensure the orderly development of the golf estate.

4. In essence therefore, no building work can be undertaken unless the building contractor has been approved by the developer and has entered into an agreement with developer”. My own emphasis.

6. Any building contractor that has not entered into an agreement with developer, will be refused entry to the estate by the Homeowners’ Association, which is a separate entity and should not be confused with our client. You will agree that any golf estate (or controlled access residential development for that matter) has the right to control access to its property for security and for reasons”. (The underlining is my emphasis).

It is clear that what is said was conveyed to Bosch on behalf of the contractor by Mr Annatjie, is consistent with the letter of the 14 November 2008 written on behalf of the developer. The developer therefore cannot distance itself from those utterances. But, again, “will be refused entry to the estate by the Homeowners Association” in paragraph 6 of the letter aforesaid, seems to suggest that the Association agrees with the condition set out in paragraph 4 of the letter, and in particular that an agreement should be concluded with the developer before a contractor could be allowed into the estate to build.

[11] For one to find in favour of the developer (the applicant), I need to be satisfied on the papers, that there was nothing unto what in concluding the agreement which the developer now seeks to enforce. The defence raised by the contractor is very critical to the enforceability of such an agreement. Importantly, the applicant well aware of the possible dispute, decided to proceed by way of motion proceedings for its claim and I am not satisfied of its entitlement to the relief sought including the alternative relief.

[12] There is nothing in the Homeowners’ Association’s constitution or any other document obliging any contractor to enter into an agreement with the developer. The suggestion that if the contractor was not happy with the agreement and the terms thereof, was at liberty to pack and go elsewhere, than to do the construction work within the Emfuleni Estate, seems to underscore the essence of the defence raised.

[13] Consequently the application is hereby dismissed with costs.

M F LEGODI

JUDGE OF THE HIGH COURT

FOR THE APPLICANT: ADV W GEYSER

INSTRUCTED BY: DYASON INC.

134 Muckleneuk St West

Nieuw Muckleneuk, PRETORIA

TEL: [phone]

REF: M CAPAZORIO/lw/AX0531

FOR THE RESPONDENT: ADV. E P VAN RESNBURG

INSTRUCTED BY BASSON BESTER ATTORNEYS

C/O VAN ZYL LE ROUX INC.

First Floor, Monument Office Park

Block 3, Cnr Steenbok Ave & Elephant Street

Monument Park, PRETORIA

TEL: [phone]

REF: MAT54056/T KIRCHNER/TC