Claud Bosch Architects cc v Auas Business Enterprise 123 (Pty) Ltd (SA 41 of 2016) [2018] NASC 3 (6 February 2018)

Claud Bosch Architects cc v Auas Business Enterprise 123 (Pty) Ltd (SA 41 of 2016) [2018] NASC 3 (6 February 2018)

Section 13(1)(b) of the Architects and Quantity Surveyors Act does not expressly render agreements by non-natural persons to provide architectural services void or unenforceable where the work is performed by a registered architect. The legislative intent, statutory context, and regulations do not support invalidity as a further penalty. Greater inconvenience and impropriety would result from invalidating such agreements, especially where the statutory mischief is not present. The High Court erred in following Nkandi; the exception should not have been upheld.

Citation
[2018] NASC 3
Parties
Appellant: Claud Bosch Architects CC; Respondent: Auas Business Enterprises Number 123 (Pty) Ltd
Court
Supreme Court
Jurisdiction
Namibia
Judgment Date
6 February 2018
Case Number
SA 41 of 2016
Procedural Posture
Civil Appeal / Supreme Court Judgment on Appeal From High Court Exception
Outcome
appeal allowed
Legal Topics
Enforceability of Contracts, Statutory Prohibition, Architectural Services, Corporate Entities, Exceptions Procedure
Source Language
English
Statutory Interpretation Contract Law Professional Regulation Enforceability of Contracts Statutory Prohibition Architectural Services Corporate Entities Exceptions Procedure

Case Brief

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Parties

Claud Bosch Architects CC

Appellant

Auas Business Enterprises Number 123 (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Supreme Court Judgment on Appeal From High Court Exception

Legal Issues

  1. 1 Whether an agreement by a non-natural person to provide architectural services is unenforceable due to s 13(1)(b) of the Architects and Quantity Surveyors Act, 13 of 1979
  2. 2 Whether the prohibition in s 13(1)(b) renders such contracts void or unenforceable when work is performed by a registered architect

Ratio Decidendi

Section 13(1)(b) of the Architects and Quantity Surveyors Act does not expressly render agreements by non-natural persons to provide architectural services void or unenforceable where the work is performed by a registered architect. The legislative intent, statutory context, and regulations do not support invalidity as a further penalty. Greater inconvenience and impropriety would result from invalidating such agreements, especially where the statutory mischief is not present. The High Court erred in following Nkandi; the exception should not have been upheld.

Court Disposition

appeal allowed

Orders

  • The appeal succeeds with costs including the costs of one instructing and one instructed counsel.
  • The order of the High Court is set aside and replaced with: 'The exception against the plaintiff’s main claim is dismissed with costs, which include costs of one instructing and one instructed counsel.'