NOT REPORTABLE

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case No: I 920/2003

In the matter between:

PIERRE SMITH ARCHITECTS CC PLAINTIFF

and

HAROLD SCHMIDT t/a PRESTIGE PROPERTIES DEFENDANT

Neutral citation:

Pierre Smith Architects CC v Schmidt (I 920-2003) [2014] NAHCMD 92 (20 March 2014)

Coram: VAN NIEKERK J

Heard: 28, 29, 30 June 2004; 1 July 2004; 28, 29, 30 September 2004

Delivered: 20 March 2014

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Flynote: Claim by architect for professional services rendered – Defendant

raising defence that contract concluded with different party – Defence

rejected on facts – Requirement that plaintiff makes allegations that it

fulfilled its obligations in case of reciprocal contract discussed -

Defendant raising second defence of exceptio non adimpleti contractus

– Allegations required to be alleged by plaintiff claiming reduced

contract fee based in incomplete performance discussed – Second

defence upheld on facts – Plaintiff proved defendant’s liability for

disbursements.

___________________________________________________________________

ORDER___________________________________________________________________

1. The plaintiff’s claim as set out in paragraph (a) of the particulars of claim is

dismissed.

2. Judgment is given for the plaintiff against the defendant for:

(a) Payment of the sum of N$1 477-25 in respect of disbursements made by

the plaintiff on behalf of the defendant.

(b) Interest a tempore morae from the date of issue of the summons until

payment is made at the rate of 20% per annum.

(c) 50% of the plaintiff’s costs of suit.

3. The defendant shall pay the costs occasioned by the argument on

postponement of the matter, which argument lasted for 30 minutes.

___________________________________________________________________

JUDGMENT

___________________________________________________________________

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VAN NIEKERK J:

[1] The plaintiff is close corporation which carried on business as architects.

According to the particulars of claim the defendant is a building contractor carrying

on business under the style or firm Prestige Properties.

[2] In the particulars of claim the plaintiff alleges that during the first half of 2002 the

parties entered into certain negotiations in terms of which the defendant required the

plaintiff to carry out professional architectural services for the development of Erf No.

7140, Ballot Street, in Windhoek; that on 12 July 2002 the defendant by way of a

letter addressed to the plaintiff (annexed as Annexure “A”), proposed a fee for the

architectural services to be rendered by the plaintiff in the amount of N$205 625-00;

that this fee excluded the costs of any disbursements made by the plaintiff on behalf

of the defendant and VAT at the rate of 15%; that the plaintiff shortly after receipt of

the proposal accepted same; that the due agreed fee plus VAT of N$30 843-75

amounted to N$236 468-75; that the defendant made payments towards the amount

due to the plaintiff, namely N$50 000 on 30 August 2002 and N$60 000-00 on 28

October 2002, leaving a balance of N$126 468-75; that the plaintiff made

disbursements on behalf of the defendant in terms of the agreement in the amount of

N$1 477-25; and that, notwithstanding demand, the defendant has failed or refused

to pay the balance of professional fees and the disbursements. The plaintiff’s claim

is accordingly for the payment of N$126 468-75 and N$1 477-25, plus interest and

costs.

[3] The defendant opposed the claim and filed a plea. He denies that he is a party to

the agreement and that he is trading as Prestige Properties. He alleges further that

the agreement is oral and was concluded during July 2002 between the plaintiff,

represented by Mr Pierre Smith and City Park Properties CC, represented by Mr

Harold Schmidt. He alleges that the express, alternatively implied, further

alternatively tacit, terms of the agreement were (i) that the plaintiff would render

professional architectural services to City Park Properties CC for the development of

Erf 7140, Ballot Street; (ii) that the services would consist in plaintiff preparing

architectural drawings as per the defendant’s specifications acting on behalf of City

Park Properties CC; (iii) although the said drawings did not have to provide detailed

plans, the plaintiff would be obliged to provide same if any of City Park Properties

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CC’s prospective clients demanded same and without any extra charge to City Park

Properties CC, as it was understood between the parties that the plaintiff’s fee of

N$205 625-00 was in excess of what would ordinarily have been payable on a

project of this value; (iv) that City Park Properties CC would pay the plaintiff 50% of

its fee upon the drawings being approved by City Park Properties CC and upon

submission for municipal approval, while the balance of the plaintiff’s fee was to be

paid upon the drawings receiving municipal approval.

[4] The defendant admits that he forwarded the proposal contained in annexure “A”

to the plaintiff, but pleads that he did so on behalf of City Park Properties CC and not

in his personal capacity. He further admits that the plaintiff accepted the proposal,

but that the proposal was subject to the terms agreed between the plaintiff and City

Park Properties CC as set out above.

[5] The defendant further pleads that City Park Properties CC had duly complied with

its obligations under the contract, but that the plaintiff failed to meet its obligations

under the contract, despite demand. In the premises the defendant avers that the

amount claimed by the plaintiff is not due and payable.

[6] The defendant further admits the two payments made, but denies the plaintiff’s

allegations about the disbursements.

The evidence presented by the plaintiff

[7] The plaintiff called only one witness to testify on its behalf, namely Mr Pierre

Jacobus Smith. He is an architect who has been practicing as such since 1976. He

is a member of the Namibian Institute of Architects, which is a professional body for

architects. It is clear on all the evidence that the witness conducted his profession

as architect in his capacity as the sole member of the plaintiff and that whenever he

dealt with the defendant, he was representing the plaintiff.

[8] Mr Smith met the defendant through Africon Namibia Inc (“Africon”), a firm of

consulting engineers. At the request of Africon, the plaintiff did interior design

drawings for a building of which the defendant was the owner, builder and developer

and which was to be occupied by Africon. After this work was completed and paid

for, the defendant approached him during May or June 2002 regarding two adjacent

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erven which he owned in Ballot Street and asked the witness to do a study on what

can be developed on these erven as far as office buildings are concerned.

[9] On 4 July 2002 Mr Smith in the name of Pierre Smith Architects sent a letter to

the defendant in which he set out certain details of proposed fees to be charged for

the proposed development project based on calculations as prescribed by the

Namibian Institute of Architects (Exh “A”). On 5 July 2002 the defendant replied in

writing, stating inter alia, “On various occasions I requested that we should meet to

discuss fees. I am not prepared to accept fees as per your letter. Please stop all

work on the project, because if we cannot agree, I will not continue with you.’ (Exh

“B”). He indicated that Mr Smith could contact him to arrange a meeting.

[10] It is common cause that a meeting did take place, after which the defendant sent

the letter attached to the particulars of claim as Annexure “A” and handed in as Exh

“C”. In the letter the defendant refers to Exh “A” and their meeting and sets out a fee

proposal. It is not necessary to set out the detailed figures, except to state that the

total fee proposed is N$205 625.00. The letter continues to state:

‘This is much higher that (sic) the normal 2.4% of building costs (in this case it

would have been N$150 000.00) charged by architects for municipal approval

plans.

These prices exclude VAT and extras will be charged on an hourly basis or

piece work price as agreed from time to time. We must however meet and

agree as to what would be included under “Municipal Approval Plans.”

I trust we can now reach a final agreement and have the Municipal Approval

plans submitted within 7 to 10 days.’

[11] Mr Smith discussed this proposal with the defendant on 23 July 2002 and on 29

July 2002 wrote a letter on behalf of the plaintiff to the defendant, the relevant part of

which reads:

‘We herewith confirm the discussion the writer had with you on the 23 July

2002 regarding the scope of our work and the fee payable to us.

We confirm that we agreed on a total fee of N$205 625 + VAT. Municipal

submission fees and disbursements will be paid separately.

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We confirm that we had agreed that if possible at least 40% of the fee by (sic)

paid on the 31st July 2002.

The layout plans would be ready by Wednesday the 31st for your perusal and

discussion with Africon. We are now awaiting their design input on structural

sizes before we can proceed further.’

[12] According to Mr Smith the defendant never responded to Exh “F”. During cross-

examination of the defendant he at times denied having seen this letter before trial

preparation took place. At times he said that he could not recall seeing this letter

and at times he appeared to accept that it was indeed sent to him although he could

not remember seeing it. In my view the probabilities favour the plaintiff’s version that

this letter was indeed sent and does reflect some of the aspects discussed. It should

be read with Exh “C” in which the scope of the work to be performed by the plaintiff is

more fully set out.

[13] Mr Smith testified that the defendant was supposed to appoint Africon to provide

engineering input, but never did. This evidence cannot be accepted. There is

credible evidence presented during the defendant’s case which indicates that Africon

was appointed on 20 September 2002 with effect from 9 August 2002 to undertake

the design of the structural elements in respect of the project (See Exh “Y”). The

official municipal letter of appointment was in fact signed on behalf of the defendant

by the plaintiff’s employee, Mr Joey Swartz, who was a draftsman in the plaintiff’s

office and responsible for completing the plans for submission to the municipality.

[14] Be that as it may, as I understand the evidence, at some stage during August

2002 Mr Francois le Roux of Africon did provide Mr Smith with hand drawn sketches

indicating where beams should be placed and gave an indication of the column sizes

for the plaintiff to be able to complete the drawings for submission to the Windhoek

municipality for approval. However, these sketches were not sufficiently detailed for

the plaintiff to complete the final construction drawings for the builder. Mr Smith

testified that the municipality would, in any event, have required a proper set of

structural engineer drawings to be submitted before the plaintiff’s plans could be

approved.

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[15] Mr Smith explained that he had agreed with the defendant on a 40% payment by

31 July 2002 as the plaintiff had already done a substantial amount of work on the

drawings required. On 30 July 2002 the plaintiff invoiced the defendant for sketch

plans and working drawings in the amount of N$82 250.00 representing an amount

of 40% of the agreed total fee plus VAT of N$12,337.50, bringing the total amount

invoiced to N$94,587.50 On 30 August 2002 the defendant paid the plaintiff an

amount of N$50 000. On 29 August 2002 the plaintiff sent a second invoice for the

balance of 40% of the total fee plus VAT, i.e. for N$44, 487.50. To this invoice was

added an amount of N$428.69 plus VAT of N$64.30 for disbursements. The total

invoice amounted to N$45,080.49. On 28 October 2002 the defendant paid an

amount of N$60 000 to the plaintiff.

[16] It is common cause that on 25 September 2002 the plaintiff presented the plans

to the Windhoek municipality for approval and that the defendant paid the non-

refundable submission fee of N$40 000 to the municipality. Mr Smith expressly

stated during his testimony that ‘... it was an agreement between myself and Mr

Schmidt that these plans will be submitted so that they can start circulating for

approval.’

[17] It is further common cause that the plans are circulated from the one department

to the other within the municipality. Each department is supposed to scrutinize the

plans to check whether the plans are in line with any requirements set by law or

regulation. If there is a problem or a query, the specific scrutinizer or department

member should make a note of the problem or query on the cover in which the plans

are placed and indicate what action is required. If the problems or queries remain

unattended, a post card is sent by post, usually to the architect, to draw attention to

the issues to be addressed. Sometimes the architect or owner enquire about the

progress of approval and is informed that the plans should be collected to attend to

the queries. If the problems or queries are satisfactorily addressed the particular

department signs off the plans, indicating that that department has approved the

plans. Once all the necessary approvals have been obtained, a building permit is

issued which allows building to commence.

[18] It is further common cause that in this case several queries were raised and that

three post cards were sent. It seems that they were sent to the defendant and not to

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the plaintiff, but it is common cause that at some stage the post cards were in the

plaintiff’s possession to be attended to. In summary it may be stated that Mr Smith’s

evidence-in-chief on all the queries amounted thereto that they were not related to

the plaintiff’s responsibility as the architect and that their resolution to the satisfaction

of the municipality depended upon other persons, e.g. the engineers. In other

words, the fact that the plans have not been approved is not to be blamed on the

architect. I shall deal in more detail with this aspect later in the judgment. It is also

common cause that at the time of the trial, municipal approval had not been granted.

[19] As far as payment of the balance of the total agreed fee, plus disbursements

and VAT is concerned, Mr Smith’s evidence is that the plaintiff is entitled to payment

because the plaintiff has completed the drawings as agreed with the defendant in

Exh C. Mr Smith denied the defendant’s version that it was ever discussed that the

plaintiff would be paid 50% of the fee upon submission of the plans for municipal

approval and 50% upon the approval having been obtained.

[20] Mr Smith further denied that the defendant ever brought it to his attention that

the plaintiff was contracting with City Park Properties CC and not with the defendant.

[21] This concluded the plaintiff’s case.

The evidence presented by the defendant

[22] The defendant testified and told the Court that he is a businessman who is

involved in various businesses, including investment companies, fishing and property

development. Initially he conducted much of his business by means of shareholding

in an entity called Prestige Properties (Pty) Ltd of which he later became the sole

shareholder and director. He further is the sole member of several close

corporations, some of which own property which the defendant developed from time

to time. The particular erf for which the plaintiff drew the plans is situate at Erf 7140

Ballot Street. The adjacent erf, Erf 1071, belongs to another close corporation of

which the witness is the sole member.

[23] He essentially confirmed the evidence of Mr Smith about how they met and the

plaintiff’s involvement in the Africon building. During this period he mentioned to Mr

Smith that he had bought the two erven and that he would like to do a development

on them. Mr Smith indicated that the plaintiff could provide him with an attractive

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design. On a later occasion Mr Smith showed him some sketches which the

defendant liked very much, but the design crossed the borders where the erven were

adjoined. This was a problem, inter alia, as the two erven did not have the same

zoning. The one was zoned for residential property and Erf 7140 was zoned for

offices. He also explained that the two erven belonged to different owners, namely

Central Park Properties CC and City Park Properties CC. As Erf 7140 was zoned for

offices, he indicated that this erf would be developed first.

[24] His evidence is further in alignment with that of the plaintiff’s, namely that the

agreement was essentially based on the contents of Exh “C”. He however, denied

the plaintiff’s version on the agreement about payment. His evidence is that an oral

agreement was reached that the plaintiff would be paid 50% of the fee when the

plans were submitted for approval and 50% upon municipal approval.

[25] In short, his evidence further is that the plans have up to the time of the trial not

been approved for various reasons for which he holds the plaintiff responsible and as

such the plaintiff is not entitled to payment. I shall deal with his evidence in more

detail later.

[26] The defendant called several witnesses. They are Mr Loots (a building

inspector at the Windhoek municipality), Mr Venter (the head of the Health Services

Department of the Windhoek municipality), Mr Joey Swartz (a former employee of

the plaintiff and the draftsman responsible for the plans in this case), Mr F le Roux of

Africon and Mr Horst Lisse (Windhoek municipality). I shall deal with their evidence,

where necessary, below.

The issues to be decided

[27] As the matter progressed during the trial, some issues gained more prominence

than other. Submissions by counsel at the end of the trial also provided a few

surprises, some of which led to an opposed application by the plaintiff during reply to

amend its particulars of claim.

[28] Having considered the pleadings, the evidence and the arguments of counsel, it

seems to me that the following are the issues of fact or law potentially to be decided:

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(i) Are the plaintiff’s particulars of claim excipiable for lack of the averment

that the plaintiff performed its obligations in terms of the agreement?

(ii) May the plaintiff claim a reduction of the contract price in the absence of

the particulars of claim or a replication laying the basis for such a claim?

(iii) Should the plaintiff’s application for leave to amend its particulars of claim

be granted?

(iv) Should the plaintiff be allowed to rely on estoppel in the absence of a

replication alleging same?

(v) Did the plaintiff contract with the defendant or with City Park Properties

CC?

(vi) If the Court holds that the correct party is sued, does the defendant’s plea

disclose a defence?

(vii) Did the plaintiff perform its obligations under the contract, alternatively

should it be awarded a reduced fee?

(viii) What was the agreement regarding payment of the plaintiff’s fee?

(ix) Has the plaintiff proved its claim for payment of disbursements?

[29] Depending on the outcome of any of the issues, the others might fall away. I

now turn without further ado to a consideration of the first two issues as they may

conveniently be grouped together.

(i) Are the plaintiff’s particulars of claim excipiable for lack of the averment

that the plaintiff performed its obligations in terms of the agreement?

(ii) May the plaintiff claim a reduction of the contract price in the absence of

particulars of claim or a replication laying the basis for such a claim?

[30] During the argument stage, Mr Muller, who appeared for the defendant,

suggested that a first issue to be considered is whether the plaintiff’s particulars of

claim are excipiable, as he submitted they indeed are. He further submitted that the

plaintiff’s claim should be dismissed but that the defendant’s costs should be

awarded only up to the exception stage. Counsel referred to the fact that the alleged

contract between the parties is a reciprocal contract and submitted that the plaintiff

was obliged to plead that it has performed its obligations under the contract. Failure

to do so would render the pleading excipiable. Counsel correctly relied on authority

for this submission in Kam NO v Udwin 1939 WLD 339 and BK Tooling (Edms) Bpk

11

v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A) at 431G. Counsel

further relied on the following passage in Koenig v Johnson & Co, Ltd 1935 AD 262

at 276:

‘It is an elementary principle of law and pleading that if a plaintiff claims

money on a contract he must aver and prove that he has performed his part

of the contract’.

[31] However, Mr Corbett, who appeared for the plaintiff, accepted that the

particulars of claim are excipiable on the basis argued, but was quick to rely on what

was stated a few lines further in Koenig v Johnson & Co, Ltd where the learned Chief

Justice Wessels said:

‘But like all general principles of law there are exceptions. When a case has

been fought out and all the facts are ascertained the Court will consider

whether it is right and proper to apply the general principle or whether it will

adopt a modification of it under the circumstances revealed in the whole case.

That the Court can and ought to deviate from the general principle if in its

discretion it thinks it ought to do so was decided in ..... [Hauman v Nortje 1914

AD 293 at 300].’

[32] Mr Corbett submitted that the case was fought on the basis of the plaintiff

seeking to prove that it did comply with its obligations, while the defendant was intent

upon showing that it did not do so. To this end extensive evidence was led and

cross-examination directed at the plaintiff and the defendant, as well as some of the

defendant’s witnesses. He submitted that this is a case where the Court should

exercise its discretion to deal with the matter on the basis of the evidence adduced

even though the plaintiff did not make the required allegation.

[33] Plaintiff’s counsel submitted during argument that the plaintiff did indeed

substantially comply with its obligations, but should the Court not be satisfied that

this was indeed the case, he was of the alternative view that the plaintiff has indeed

proved that its obligations were 95% fulfilled, that the defendant was using the plans

designed and that the plaintiff was entitled to be paid 95% of the contract price, plus

VAT. (However, it should be noted here that Mr Smith did not mention this

percentage. A careful reading of the record indicates that in testimony related to this

issue in general he mentioned a percentage of 90%).

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[34] Mr Muller countered this submission by pointing out that the plaintiff should have

replicated to the defendant’s defence of a denial that the plaintiff fulfilled its

obligations by making the necessary allegations with respect to a claim for a reduced

contract price. As he failed to do so, the plaintiff could not rely on such a claim or on

evidence led or elicited in support of allegations not pleaded. He emphasized the

purpose of pleadings to be, in short, (i) to ensure that the parties are aware of the

case each has to meet; (ii) to assist the court by defining the limits of the action; and

(iii) to place the issues raised in the action on record so that when judgment is given,

such judgment may be a bar to parties litigating again on the same issue (Beck’s

Theory and Principles of Pleading in Civil Actions, (5th ed) para. 17).

[35] Counsel also referred to the BK Tooling case (supra) where it was said (at

431G-H) that unless a contractor who claims the counter performance alleges that

he has himself fully performed, his pleading would be excipiable. Should he wish to

rely on the Court’s discretion, he should at least allege that the other party is utilising

the defective performance and set out those facts which may influence the Court to

exercise its discretion in his favour.

[36] In this regard Mr Corbett also referred to the fact that the Court has an equitable

discretion to award the plaintiff the reduced contract price and requested that this

discretion be exercised in the circumstances of this case. In the alternative he

moved an amendment to include the necessary allegations in the plaintiff’s

particulars of claim.

[37] The defence raised by the defendant in this regard on the pleadings is the

exceptio non adimpleti contractus. In a case to which the parties did not refer,

namely Boshoff t/a Etosha Meubelvervoerders v M Pupkewitz and Sons (Pty) Ltd

1984 (2) SA 24 (SWA) the Court, per Berker J (as he then was) (Mouton J

concurring), said (at 28E-29G):

‘What the defendant has in effect done was to raise in its plea the exceptio non

adimpleti contractus, which normally is a good defence to a claim where, in a

contract involving reciprocal obligations, the claimant has to perform first in order to

become entitled to performance by the other contracting party. The present contract

is one of locatio conductio operis, to which this principle applies:

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"Die kontrak is die bekende locatio conductio operis waarby normaalweg die

vergoeding verskuldig en betaalbaar raak by voltooiing van die werk as dit as een

werkstuk aanbestee is. Voor voltooiing sou die kontrakteur wat vergoeding eis

afgeweer kan word met die exceptio non adimpleti contractus. Voet 19.2.40;

Hauman v Nortje 1914 AD 293 te 297, 302; Sifris en 'n Ander NNO v Vermeulen

Broers 1974 (2) SA 218 (T) te 223... Voor voltooiing sou so 'n kontrakteur slegs

betaling... kan eis waar dit 'n bepaling van die kontrak is. Daarsonder sou sy eis

misluk."

Per VAN DIJKHORST AJ in Simmons NO v Bantoesake Administrasieraad

(Vaaldriehoekgebied) 1979 (1) SA 940 (T) at 946A - B. See also KING AJ in R M

van de Ghinste & Co (Pty) Ltd v Van de Ghinste 1980 (1) SA 250 (C) at 252.

As already pointed out the issue whether or not the plaintiff had fully performed under

the contract was raised by defendant raising the exceptio non adimpleti contractus,

and the magistrate should have decided this issue first, the onus in this respect being

on plaintiff. The magistrate, however, wrongly held that on the pleadings the

defendant had admitted full performance and that the plaintiff was entitled to

judgment.

From the evidence led by defendant it is quite clear, however, that plaintiff did in fact

fail to deliver the goods in the condition in which they were received for conveyance,

that is in an undamaged condition, and that it therefore failed to perform one of the

essential elements of the contract between the parties. The exceptio non adimpleti

contractus was therefore in my view raised successfully by defendant, and plaintiff

would not normally be entitled to any remuneration. But this does not necessarily

conclude the matter as far as plaintiff's claim is concerned.

Whilst the general rule is that a claimant in a contract like the present, involving

reciprocal obligations, must prove that he has in fact fulfilled all obligations resting on

him, our law does, under certain circumstances, allow a contractor to claim

remuneration even where he has rendered incomplete or defective performance. The

basis for this exception is that a strict application of the general principle would in

some cases lead to unfair consequences. This was already recognised by Voet

19.2.40, and accepted in our law, the earlier leading cases being Hauman v Nortje

1914 AD 293; Breslin v Hichens 1914 AD 312; Van Rensburg v Straughan 1914 AD

317. Whilst the principle that exceptions to the general rule must under certain

circumstances be made is clear, the application thereof has not been uniform. A full

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and detailed analysis of this problem was made by JANSEN JA in BK Tooling (Edms)

Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A).

I do not propose, nor is it necessary, to deal fully with this interesting subject. For the

purpose of the present case it is sufficient to state that, in terms of the judgment of

JANSEN JA in the BK Tooling case, a court, in the exercise of its discretion, can

allow a relaxation of the strict principle of reciprocity where the other party has

utilised the partial performance, and that the coming into being of the court's

discretionary power of relaxing the principle of reciprocity has no connection

whatever with the degree of shortcoming of the incomplete performance.

In the present case the plaintiff could therefore have raised as an alternative basis for

its claim that, even if it had rendered defective performance by delivering some of the

goods in a damaged condition, it was nevertheless entitled to a reduced

remuneration as, in the circumstances of the case, all elements were present which

would result in the court exercising the equitable discretion just referred to. But this

the plaintiff did not plead. I shall revert to this aspect of the matter later.’

[38] The Court then dealt with the defendant’s counterclaim for damages and said (at

30D-H):

‘The result is that the defendant in my view has proved its case for damages and is

entitled to judgment in the amount of R1 490. As set out earlier, on a strict application

of the principles of reciprocity in contracts of locatio conductio operis, plaintiff on the

other hand would not be entitled to any remuneration, as it failed to plead in the

alternative that it should become entitled to remuneration despite its defective

performance.

However this result would be inequitable, as clearly the plaintiff did render services,

albeit defective, and on the other hand the defendant benefited by and utilised the

incomplete performance - after all quite a few of the goods were safely conveyed. It

therefore seems to me to be a case where the Court, under all the circumstances,

should exercise its discretion and, despite the fact that plaintiff failed to raise this

issue, nevertheless allow the plaintiff's claim for the conveyance of the goods. The

essential elements which a claimant who has rendered defective performance must

prove to become entitled to a reduced contract price have been set out by JANSEN

JA in BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk (supra) and

are conveniently summarised in the headnote of that case as follows:

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"If the contractor does not succeed in convincing the Court that he has fully

complied with his side (of the contract), and he wishes then to claim a

reduced contract price, he will have to prove:

(i) that the employer is utilising the incomplete performance;

(ii) that circumstances exist making it equitable for the Court to

exercise its discretion in his favour;

(iii) what the reduced contract price should be, ie what it will cost to

bring his performance in order for the purpose of determining by

how much the contract price should be reduced."

In the present case the elements set out are in my view present, and the plaintiff is

entitled to have the contract price set off against the proven damages suffered by

defendant.’

[39] Having considered the cases of Kam N.O. v Udwin, BK Tooling and Boshoff t/a

Etosha Meubelvervoerders (supra), it appears to me that one should distinguish

between the situation where the exception is raised at the proper stage before

evidence is led during the trial and the situation where the exception is raised at the

conclusion of the trial. It seems to me that Mr Muller’s submissions would have to be

upheld in the first situation, as the plaintiff in this case did not make the necessary

allegations in its pleadings. (See Council of the Municipality of Windhoek v Coetzee

t/a M W Coetzee Builders 1999 NR 129 (HC).) However, while it certainly is

normally required that the allegations set out in BK Tooling be included in the

particulars of claim, or, in the case of a claim for the reduction of the contract price in

reply to a defence of exceptio non adimpleti contractus, in a replication, it is not

necessarily fatal in the second situation. It would depend on the extent to which the

issues were canvassed and dealt with during the trial and whether the facts disclose

a sufficient basis for the Court, in the exercise of its equitable discretion, to award the

plaintiff a reduced contract price. Tempting though Mr Muller’s invitation to take this

shortest of short cuts may be, it seems to me that justice demands that the evidence

in this matter should be considered.

[40] In this context it is an important consideration that the defendant raised no

objection to the evidence presented by the plaintiff in its endeavours to prove that it

did comply with its obligations, alternatively that it is entitled to be awarded a

16

reduced fee, and also did not object to the relevance of cross-examination on these

issues during the defendant’s case. The case was fought as if the allegations, the

absence of which is the subject of the defendant’s complaint, were indeed pleaded.

(iii) Should the plaintiff’s application for leave to amend its particulars of claim

be granted?

[41] In the light of the conclusion reached on the previous two issues, it is not

necessary to consider this matter any further.

(iv) Should the plaintiff be allowed to rely on estoppel in the absence of a

replication alleging same?

[42] During the course of argument about the defence raised by the defendant that

the plaintiff in fact contracted with City Park Properties CC, counsel for the defendant

submitted that the plaintiff’s evidence-in-chief and the cross-examination of the

defendant is based on a reliance on estoppel and that, as the plaintiff did not plead

such reliance by way of a replication to the defendant’s plea, it means that the Court

should disregard the evidence supporting the reliance on estoppel.

[43] However, counsel for the plaintiff made it clear that the plaintiff does not rely on

estoppel at all. The plaintiff’s case is that it contracted with the defendant and that

the defence raised by the defendant does not reflect the true facts. This is in fact

what I understood the plaintiff’s case to be throughout. In my view there is no merit

in the objection raised by defendant’s counsel.

(v) Did the plaintiff contract with the defendant or with City Park Properties

CC?

[44] If the defence raised by the defendant that the plaintiff has sued the wrong party

is upheld, this is the end of the matter. I shall therefore proceed to consider this

issue next.

[45] The plaintiff’s evidence is that it contracted with the defendant and that the latter

never at any stage indicated that he was representing another entity such as a close

corporation. According to Mr Smith, the name ‘City Park Properties Close

Corporation’ was never mentioned by the defendant. Mr Smith first heard this name

17

when he was called by his attorney to discuss certain documents he received. This

was after the plaintiff instituted legal proceedings in this matter.

[46] The defendant’s evidence is that Erf 7140 belongs to City Park Properties CC.

During the trial this was not disputed and this fact may be considered as proved.

The defendant said that he specifically informed Mr Smith of this fact and that City

Park Properties CC was the developer of the project on the day when the latter

showed him the initial design sketches for an office development stretching across

both Erf 7140 and Erf 1071. The reason for telling him this was because the design

would not be accepted as the two erven belonged to different owners and the erven

were zoned differently. The defendant stated that he mentioned the fact that Erf

7140 was owned by City Park Properties CC only on this one occasion. His attitude

throughout his time in the witness box was that, as he had informed Mr Smith of this

fact once at the beginning, the latter was aware of this fact and there was therefore

no need to repeat it.

[47] During cross-examination of Mr Smith it was put to him that the defendant, from

the one occasion that he mentioned City Park Properties CC, assumed throughout

that Mr Smith was always aware when the defendant acted and talked to Mr Smith

about Erf 7140 and discussed and agreed on anything in respect of Erf 7140 he was

acting as ‘Mr Schmidt as a member of the cc’. This Mr Smith denied because he

could not recall that the defendant ever mentioned City Park Properties CC.

[48] The defendant was confronted during cross-examination with several of the

documentary exhibits handed in during the trial. None of the three letters he wrote

(see Exh “B1”, Exh “C”, Exh “O1”) about the project on Erf 7140 are on a letterhead

of City Park Properties CC and there is no indication anywhere in this

correspondence that he is representing such an entity. All the correspondence is

signed in his own name. Exh “B1” was faxed to the plaintiff under cover of a fax

cover sheet of Prestige Properties (Pty) Ltd (see Exh “B3”). Exh “C” was faxed

under cover of a personal fax cover sheet (see Exh “D”) bearing the defendant’s

name and the telephone number of ‘Prestige Properties’ as it was listed in various

telephone directories (see Exh “E1-E6”).

[49] The plaintiff directed its correspondence and invoices either at Mr Schmidt in

person, or at “Prestige Properties, ATTENTION – MR H SCHMIDT” or at “Mr Harold

18

Schmidt, Prestige Properties” (see Exh “A”, Exh “F”, Exh “G”, Exh “H”). The

plaintiff’s list of drawings (Exh “J1”) bears the heading: “LIST OF DRAWINGS, ERF

7140 BALLOT STREET, CLIENT – MR HAROLD SCHMIDT”. Mr Schmidt did not

point out at any stage that these descriptions were incorrect as the client or

contracting party is in fact City Park Properties CC.

[50] The defendant was at pains to point out that he was aware of the importance to

distinguish between the various corporate entities of which he is a member and to

make sure that the correct party is referred to, especially when that party incurs

liabilities or enters into a contract. Yet he was unable to explain satisfactorily why it

was not done in this case. If this truly was his concern one cannot understand that

he never corrected what must have been a clear misconception on the part of the

plaintiff. The defendant’s attitude during cross-examination was that, because he

had earlier on informed the plaintiff who the owner of Erf 7140 was, he had no

obligation to correct the plaintiff’s misconception, that it was the plaintiff’s problem

and that it was the plaintiff’s choice to address documents to the wrong party.

[51] The defendant did not make a good impression on me as far as this aspect of

his testimony is concerned. His answers are simply not credible. This impression is

strengthened by the following evidence: According to the defendant it was quite clear

to Mr Theo Oppermann of Methealth, a prospective lessee of office space in the

development, that City Park Properties CC was the developer. Yet Mr Oppermann

addressed a letter concerning the subject to “Mr Harold Schmidt, Prestige Properties

(Pty) Ltd” (see Exh “O2”). The defendant’s explanation for this is that Mr Oppermann

probably did so because of the defendant’s association with this company. Clearly it

was not just Mr Smith who laboured under a misconception, if indeed the defendant

had mentioned the fact that City Park Properties CC was the developer.

[52] The impression I had of the defendant is that he in fact did not distinguish clearly

between himself and the various corporate entities of which he is the sole member.

He was clearly in the habit of referring to himself instead of the entity in all

correspondence. He paid the municipal submission fees and the plaintiff’s fees with

his cheques. His own testimony is revealing when he stated in evidence-in-chief (at

p. 327): ‘During common conversation I think I told Mr Smith that I bought these two

erven and that I would like to do a development on it. He said he would develop

19

something nice for me ....’ (emphasis provided). He testified that the issue of the

identity of the correct party is a technical point and that the defence is raised on

advice of his lawyers. He clearly did not realize before that the issue, in principle, is

important. This, to my mind, strengthens the probabilities that he never informed the

plaintiff that the owner and developer was City Park Properties CC. On all the

evidence the probabilities are that he was contracting in a personal capacity.

[53] Mr Muller pointed out that there is no entity or firm called “Prestige Properties”

and that the plaintiff therefore did not prove that the agreement was concluded with

“Harold Schmidt trading as Prestige Properties.” I agree with this submission, but

the effect is not fatal. The evidence shows that Mr Schmidt was the contracting party.

In either case the liability remains that of Mr Schmidt personally.

[54] It follows from the above that the defendant’s defence on this question is

rejected.

(vi) Should the Court hold that the correct party is sued, does the defendant’s

plea disclose a defence?

[55] During argument plaintiff’s counsel referred to paragraph 3.1 of the defendant’s

plea in which he denies that the parties entered into agreement that the plaintiff

would render architectural services to the defendant. In amplification of this denial

the defendant pleads that the agreement was with City Park Properties and not with

the defendant. Having thereafter set out certain terms of the agreement, the

defendant then pleads that City Park Properties CC duly complied with its obligations

under the contract, but that the plaintiff failed to meet its obligations under the

contract. Counsel pointed out that the defendant did not make the averment that, in

the alternative, should the correct party be cited the plaintiff would in any event not

be entitled to payment because it has not performed its obligations. Counsel

submitted that this failure would be fatal for the defendant in the event that the Court

finds that the plaintiff sued the correct party (as the Court has indeed now found),

because the defendant did not raise a defence in respect of this aspect.

[56] It is trite that the pleadings must be construed as a whole. Even if the plea might

not be a model of clarity, it can be seen when read with the allegation in paragraph

3.3 that “the amount being claimed by Plaintiff is not due and payable” that the

20

intention of the pleader is to convey that the plaintiff did not fulfil its obligations in any

event, regardless of which party is sued. This is also the basis on which the case

was fought, as Mr Muller submitted. In the circumstances the plaintiff’s contention

should not be upheld.

(vii) Did the plaintiff perform its obligations under the contract, alternatively

should it be awarded a reduced fee?

[57] Mr Smith testified that the plaintiff was instructed by the defendant in terms of

the contract to draw up plans for the development as set out in Exh “C”, which plans

were to be suitable for submission for municipal approval and that this is what the

plaintiff did. He acknowledged that the plans had not been approved by the time the

trial was conducted, but said that this was not the plaintiff’s fault.

[58] His evidence was not entirely clear in all respects. It is common cause that

there were considerable delays in finishing the plans for municipal approval. Mr

Smith laid the blame at the defendant’s door because the latter failed to appoint

Africon as structural and mechanical engineers to provide input to him as the

architect. He nevertheless acknowledged that Africon did provide him with hand

drawn sketches and other structural input to such an extent that the plans could be

done in a manner suitable for submission for municipal approval. He stated that

proper drawings would be required from the structural engineer before the final

builder’s plans could be drawn, but I understood him to say that these plans are

drawn up later after the first, less detailed, plans are submitted for approval.

[59] The defendant denied that the delay was caused by lack of engineering input or

the supply of drawings, but rather by the fact that Mr Smith was busy with other

projects and very frequently out of the office. Mr Smith conceded that he was often

away and that he initially did not dedicate a particular draftsman to attend to the

plans because there were many other projects which required attention. In an email

dated Friday, 6 September 2002 and directed to Mr Smith, the defendant vented his

frustration with the delays in the following manner:

‘1. It has now become clear to me that your office only work (sic) on

above plans on a “as and when you have a chance” basis.

21

2. I have now received promises of completion of plans for the last 3

months, the 4th month is nearly halfway.

3. I regret but the state of affairs is not acceptable to me and I herewith

advise that should I have not received all the plans required for

Municipal Approval from your office at 9H00 am on Tuesday the 10th

September 2002, I shall employ somebody else to complete them.

4. I currently access legal advise (sic) on loss of income due to delays by

your office.”

[60] Mr Joey Swartz, who was tasked with the drafting of the plans in the plaintiff’s

office, replied as follows on Monday, 9 September 2002:

‘I confirm our telephonic conversation of even date in response to your e-mail

and confirm that I have personally undertaken to attend to Ballot Street

drawings. Same will be ready Wednesday the 11 instant.

I apologise and regret any inconvenience caused to you.’

[61] The contents of these two e-mails do not convey in any way that the sticking

point was the fact that the delay was caused by the failure to appoint the engineers

or the engineers failing to provide the detailed drawings or input referred to by Mr

Smith. If this were indeed the case, one would expect that Mr Swartz would have

pointed this out to the defendant, but he did not. What is more, when he testified Mr

Swartz did not mention that the delay was caused any such failures. He in fact

stated that the defendant was right to complain about the delay. His recollection is

that a promise had been made to the defendant to have the drawings ready by a

certain date and that date had expired. On the available evidence it seems to me

that the true reason for the delay was not the lack of input by the engineers.

[62] Mr Smith at one stage testified that an architect cannot or should not finalize and

submit plans for municipal approval without the required detailed engineering

drawings having been provided. In cross-examination this was denied and it was put

to the witness that the architectural plans could be submitted for municipal approval

without the detailed input and that thereafter detailed engineering drawings ‘may

become necessary’. Mr Smith replied that this is what the plaintiff ‘eventually’

agreed with the defendant to do, but that this is not common practice and not good

22

practice either. Whether this is good practice was not taken up by any of the other

witnesses, but that this practice is indeed common was clearly evident from the

evidence of the defendant, Mr Swartz, Mr le Roux and Mr Loots, the municipal

building inspector in charge of the department dealing with building control and

overall approval of building plans. Mr Loots testified that, because of many delays in

obtaining approval of plans, the municipality no longer requires architects to submit

engineers’ drawings at the same time as the architects’ plans are submitted. In

some cases no engineers’ drawings are even required, but in some cases such

drawings are required at a later stage before final approval can be given.

[63] The understanding I have of the testimony is that this practice has been followed

for some time and that Mr Smith was aware of it in spite of his evidence that it is not

common practice. My impression is fortified by Mr Smith’s evidence when he

explained how the approval system works. He stated:

‘An engineer will give us his designs, column sizes, slab sizes, beams and the

whole lot and we will include them on our drawings as and where they are

required and at submission stage you will find that for initial approval or initial

circulation an engineer can give what they call a certificate. It is a letter from

the engineer that says I am appointed as the structural engineer and so on.

But before the final plans are, the final Municipal plans are approved they

have to submit a set of what is called engineer structural drawings.’

[64] In conclusion it is to my minds clear that the defendant’s version may be

accepted that the plaintiff did not need the engineering drawings before it could

submit the plans for approval and that the excuse for the delay put forward by the

plaintiff should be rejected.

[65] In Exh “C” the defendant specifically specified that ‘We must however meet and

agree as to what would be included under “Municipal Approval Plans”’, to which the

plaintiff agreed. Although the parties did meet, they did not testify precisely what

their agreement on this issue was. Mr Smith on behalf of the plaintiff at one stage

testified that ‘municipal approval plans’ were ‘something like’ the plans which were

submitted to the municipality in this case and that in his view the plaintiff performed

its obligations in terms of the contract. However, he also referred to other similar

situations in which the plaintiff had drawn plans without the final drawings of the

23

engineers and that in such cases he would normally send the client an account for

90% of the fee as only 90% of the work had been completed.

[66] In this case various municipal departments in which the plans were circulated for

approval raised queries on various aspects. Mr Smith acknowledged that attention

was drawn to these queries, inter alia, by way of what is called ‘post cards’. He also

agreed that it is the responsibility of the architect to attend to the queries even if the

query pertained to something which had to be done by the engineers, e.g. the

submission of engineers’ drawings on the sewer and storm water systems. The

architect has the obligation to arrange that the engineers submit the drawings.

However, in this case Mr Smith did not seem to know whether and in what manner

the queries were dealt with by the plaintiff because he was not personally involved.

It was Mr Swartz that dealt with some of the queries. However, this was also not

satisfactorily done, as it is common cause that after the first post card a further two

had to be sent to follow up on outstanding queries. In general Mr Smith’s stance in

the witness stand was that, as the queries do not relate to architectural issues, the

plaintiff is absolved from further responsibility to deal with them. However, this is

disputed by the defendant.

[67] At this stage it has therefore become necessary to consider the queries in more

detail. The evidence of the defendant, supported by Mr Swartz, is that it was the

defendant who became impatient about the fact that the plans were not being

approved. It would appear that the first post card was not sent to the plaintiff’s postal

address, but to the defendant’s. It is not clear whether he received it. However, the

defendant eventually became ‘furious’ and contacted Mr Swartz about the lack of

progress. Enquiries were made and it was established that there were queries. In

desperation the defendant arranged with Mr Swartz to meet at the building control

offices to inspect the file to see what the problems were. Together they solved a

problem raised by the Fire Brigade regarding, inter alia, ventilation of the basements.

After discussion a note was made on the file that ‘Basements to be ventilated as

discussed’ and approval was granted by this department.

[68] The defendant and Mr Swartz also discussed a query raised by the Roads

Planning Division with Mr Lisse of that department. It entailed two issues. The first

was the circulation of traffic inside the building. This problem was not addressed.

24

Only during the trial was it suggested by the plaintiff in cross-examination of Mr Lisse

that the problem could be solved by using a robot controlled system, which he,

somewhat reluctantly, conceded to be a solution, but stated that it was still not ideal.

[69] The other issue was one of access from the street into the property. The plaintiff

had designed the development in such a way that there was only one ramp to be

used as both an entrance and an exit to the property and this would have prohibited

the free and proper flow of traffic in the road. Mr Lisse stated that this problem was

not easy to solve. One of the suggestions made by the defendant and Mr Swartz

was that the adjacent erf (Erf 1071 belonging to Central Park Properties CC) be used

to provide an entrance and that the ramp on Erf 7140 be used as an exit. For this

purpose Mr Lisse required a letter regarding the consolidation of the two erven and a

plan. He was of the view that in the circumstances a combined letter by the parties

plus a plan would be required. This was never received. When asked about the

plan the plaintiff’s stance was that the plan required was a drawing by a civil

engineer. However, to my mind it is clear that, whilst it may be so that detailed

engineer’s drawings would eventually be required, what was initially required is the

architectural design plan indicating how the problem of the access would be solved.

This much can be deducted, inter alia, from the fact that the ramp as designed is not

on the border of the adjacent erf to be consolidated, but on the border of another erf

on the opposite side.

[70] The Health Department required, firstly, that in respect of basement 2 and the

third floor plans an indication must be given of what ventilation would be provided for

the male and female toilets. Secondly, in respect of the second and third floor plans

the architect was required to provide window numbers and a schedule setting out

what size of windows would be installed. It is common cause that the problem was

that the ventilation in respect of the toilets did not comply with health regulations as

there was no ventilation into open air. All that the municipality required was an

indication on the plans that mechanical ventilation would be provided and if, e.g. this

was to be provided by means of an extractor, that the plans indicate same. The

consensus of the defendant and two of his witnesses namely, Mr Venter (the Chief of

Health Services of the municipality) and Mr Loots was that it is a very simple matter

to rectify a query on this aspect because the architect can merely give the necessary

indication on the plans.

25

[71] During evidence in chief Mr Smith testified that some of the toilets were under a

ramp and he would have needed advice from a mechanical engineer regarding the

ventilation, but that this advice was never obtained because the defendant never

appointed engineers. During cross-examination the following exchange took place

between him and the defendant’s counsel:

‘Now your plans had to indicate that there would be ventilation in the toilets.

--- Yes.

Did your plans indicate that? --- No, because it would have to be mechanically

ventilated. They were under a ramp and I would have required, normally a

mechanical engineer will advise me on the size of ducting, size of fans,

whatever. And that will not appear on our drawings other than maybe a note

to say toilet mechanically ventilated.’ [my emphasis]

[72] From this answer it is clear that the plaintiff’s evidence and that of the

defendant’s witnesses is the same, namely that what was required was a mere

indication that the toilets would be mechanically ventilated. For obvious reasons

defendant’s counsel was satisfied with this answer. It is furthermore clear that the

plaintiff already knew that mechanical ventilation would be required before the plans

were submitted. It did not need to obtain the advice of an engineer to establish this

simple fact and indicate it on the plans.

[73] However, the defendant’s witnesses also stated that it is not necessary at all to

obtain the input of a mechanical engineer on a ventilation problem such as

presented itself in this case. This evidence was contested in cross-examination of

the defendant and his witnesses and some time was spent on this. I do not find it

necessary to go into all the details, as it is quite clear that the parties are ad idem on

the real issue, and that is that the plaintiff merely had to indicate that the toilets

would be mechanically ventilated, which obviously was a simple matter.

[74] As regards the window sizes and window schedules, the plaintiff acknowledged

during cross-examination that it was merely a matter of the architect providing the

required information and that this was not done. No explanation was provided for

this failure.

26

[75] The Health Department directed a further note at the plaintiff to ensure that the

windows of all floors are at least 10% of the floor area. As the details of the windows

were lacking it was impossible for the Health Department to determine whether this

requirement was met. This Mr Smith acknowledged, although he did state that in

fact the requirement was fulfilled.

[76] A problem that was noted by the Town Planning Department was that the

particular erf was zoned for residential development. As such the plans, which are

for offices, could not be approved. Clearly this would be a matter which the plaintiff

as the architect could not itself solve, but it was required of the plaintiff to bring it to

the attention of the defendant for further action, e.g. by making application for re-

zoning. However, during the trial this became somewhat of a non-issue as the

defendant was able to show that the municipality had in fact already approved the re-

zoning of the property for the building of offices in February 2002 before the plans

were submitted and, in spite of issues like the invoicing for and payment of a

betterment fee and Ministerial approval being awaited, the approval process was not

materially stalled by the query on the zoning.

[77] The Roads Construction Department required that the storm-water flow or

directions should be indicated on the site plan. According to Mr Loots all that was

required was for the plaintiff to indicate on the plan by means of arrows which route

the storm water will be taking, which is normally to the lowest point of the erf.

[78] The Sewer and Drainage Department required the sewer layout and engineers’

drawings in relation thereto. Mr Loots testified that all that was required was in

respect of the sewer layout was for the architect to indicate on the plans in which

direction the sewer line will run to the municipal sewer line to be connected at that

point. However, he did confirm that before final approval may be given, the

engineers would have to submit detailed drawings of the sewer system.

[79] Mr Loots further confirmed that the structural engineer’s detailed drawings about

the structure of the buildings would be required. Although Mr Loots did not specify

this, Mr le Roux confirmed that the detailed drawings for the storm water drainage

would also eventually be required.

27

[80] Mr le Roux and the defendant testified that Africon at first were working for the

defendant in respect of this project on risk with the understanding that they might be

appointed at a later stage. Africon was eventually appointed on 20 September 2002

with effect from 9 August 2002 to deal with the structural elements of the project. Mr

le Roux confirmed that during August 2002 he and Mr O’Flaherty, a civil engineer

also employed by Africon, had several meetings with Mr Smith and the defendant

and that sufficient sketches and input was provided for the plaintiff to do the design

work. He indicated that there was ‘a lot of communication’ and that some issues

were also discussed telephonically. He further stated that the defendant was

negotiating with Mr de Jager, a mechanical engineer of Africon for his services. He

testified that both Mr Smith and Mr Swartz knew that Africon was able, willing and

ready to do the required engineers’ drawings, but that they never conveyed to

Africon that the drawings were required. He mentioned drawings in relation to

structure, sewer, storm water and access. He further stated that if it was necessary

to obtain approval from the defendant, he could have done that, but the architect

never informed him that the municipality required the detailed drawings. This was

not disputed by when Mr le Roux was in the witness stand. In contrast to this, Mr

Smith testified that ‘information’ in relation to the access problem was indeed

requested from Africon, but he did not say what information. Mr le Roux also

testified that when nothing was further heard about the project, Africon made

enquiries and was informed that the plaintiff’s plans were undergoing the approval

process.

[81] Clearly on all Mr le Roux’s evidence Africon was keen to provide the necessary

information and drawings and I accept that they would have done so if requested.

Mr Swartz testified that he did nothing about the access query after the meeting with

Mr Lisse. In regard to the queries that related to engineer’s drawings he said that he

discussed these queries with Mr Smith who said that he would take it up with the

defendant. Mr Swartz said that after this Africon was appointed. This cannot be so

as he clearly testified that Africon was appointed before the plans were submitted for

approval. The written appointment, Exh “Y” confirms this. On the weight of the

evidence it seems to me that the evidence by Mr le Roux that the plaintiff never

conveyed to the engineers that drawings are required, although they had been

appointed, must be accepted.

28

[82] Mr Smith’s evidence is to the effect that the defendant was to blame as the

engineers were never appointed; that ‘We were not copied with any letters of

appointment from Africon at all’; and that ‘We kept on going back to Mr Schmidt to

sort of attend to Africon’s appointment’. As I stated before, this evidence cannot be

accepted as Africon was clearly appointed. The plaintiff must be taken to have had

knowledge of this as its own employee signed the appointment on behalf of the

defendant. In my view the evidence is such that the plaintiff did not on a balance of

probabilities prove that the problem was created because the defendant failed to

appoint engineers.

[83] Furthermore, on the available evidence I can come to no other conclusion that

the plaintiff did not completely fulfil its obligations as it should have. As discussed

above there were various queries raised by some of the departments which were the

responsibility of the plaintiff as architect to rectify. This was not done. Furthermore,

it is common cause that the architect is responsible for taking up queries about

engineer’s drawings with the engineers. This was never done. These deficiencies,

taken together, do not, in my view, call for the application of the maxim de minimus

non curat lex.

[84] The question now arises whether the plaintiff has proved that it has a claim for a

reduced contract fee based on its incomplete performance. As was stated in the BK

Tooling case, the plaintiff must prove (i) that the defendant is utilising the incomplete

performance; (ii) that circumstances exist making it equitable for the Court to

exercise its discretion in favour of the plaintiff; and (iii) what the reduced contract

price should be, ie what it will cost to bring the plaintiff’s performance in proper order

for the purpose of determining by how much the contract price should be reduced.

[85] As to the first requirement, Mr Corbett submitted that the defendant is utilizing

the plans because the application for approval was never withdrawn and remains

pending. He also referred to the evidence by the defendant that part of Erf 1071 is

being consolidated with Erf 7140 and asked the Court to infer that a further

progression in the development of the project has taken place, perhaps alluding to

the access problem. He further submitted that the defendant can use and will use

the plans even if a few minor details still need attention. The use of the plans was

never put to the defendant during cross-examination. However, in re-examination he

29

was pertinently asked whether he can use the plans without them having been

approved and he stated that he cannot. He also testified that, as matters stand,

regardless of whether the plaintiff succeeds or fails in his claim, the plans remain

useless until approved. In the circumstances I am not persuaded that the plaintiff

has proved that the defendant is utilizing the plaintiff’s defective performance.

[86] Having reached this conclusion it is not necessary for me to consider whether

the plaintiff has proved the second and third requirements set out above.

(viii) What was the agreement regarding payment of the plaintiff’s fee?

[87] In light of the finding made in the previous paragraph it is also not necessary for

the Court to consider this aspect.

(ix) Has the plaintiff proved its claim for payment of disbursements?

[88] The plaintiff claims payment for certain disbursements made on behalf of the

defendant relating to the printing of the plans. Although disputed in the pleadings,

the disbursements and their amount were admitted during the trial. The only basis

on which the defendant’s liability to make payment is disputed is on the basis that

the defendant was not a party to the agreement. However, for the reasons already

provided on this issue, the defendant is clearly the party who is liable for payment of

the disbursements.

Costs

[89] On the first day of the trial the defendant submitted that the matter was not ripe

for trial, but that it should be postponed and be heard with an action instituted by City

Park Properties CC against the plaintiff based on the same agreement as in the

present case. This application was dismissed on 28 June 2004. At the suggestion

of defendant’s counsel I ordered then that the costs occasioned by the argument

regarding the defendant’s submission stand over for determination at the end of the

trial. I further noted that the argument took about 30 minutes of the Court’s time. At

the end of the trial this aspect was overlooked and no argument was heard on this

matter. However, it seems to me that, since the defendant’s defence that the

agreement was concluded between the plaintiff and City Park Properties CC was

dismissed, those costs should be ordered against the defendant.

30

[90] As far as the costs of suit are concerned, I think some adjustment should be

made because the plaintiff is ultimately only successful on the small amount owed

for disbursements. However, both parties raised various other issues with mixed

success. In the circumstances I think an award of 50% of the plaintiff’s costs would

be fair.

Order

[91] The result is then as follows:

4. The plaintiff’s claim as set out in paragraph (a) of the particulars of claim is

dismissed.

5. Judgment is given for the plaintiff against the defendant for:

(a) Payment of the sum of N$1477-25 in respect of disbursements made by

the plaintiff on behalf of the defendant.

(b) Interest a tempore morae from the date of issue of the summons until

payment is made at the rate of 20% per annum.

(c) 50% of the plaintiff’s costs of suit.

6. The defendant shall pay the costs occasioned by the argument on

postponement of the matter, which argument lasted for 30 minutes.

______(signed on original)____________________

K van Niekerk

Judge

31

APPEARANCE

For the plaintiff: Adv A W Corbett

Instr. by Basil Bloch Attorneys

For the defendant: Adv L C Muller SC

Instr. by Conradie & Damaseb