Banda and Another v Van der Spuy and Another (781//2011) [2013] ZASCA 23; 2013 (4) SA 77 (SCA) (22 March 2013)

Banda and Another v Van der Spuy and Another (781//2011) [2013] ZASCA 23; 2013 (4) SA 77 (SCA) (22 March 2013)

The court found that the respondents possessed knowledge of latent defects in the roof and fraudulently concealed this from the appellants, including misrepresenting the existence of a guarantee for repairs. This conduct vitiated the protection of the voetstoots clause. The fraudulent misrepresentation was causally linked to the appellants' patrimonial loss, which was measured by the cost of repairing the roof. The respondents' lack of honest belief in the adequacy of repairs and their deliberate avoidance of the truth established fraud. The appropriate measure of damages was the reasonable cost of repairing the roof, including rectifying defects of which the respondents were unaware, as...

Citation
[2013] ZASCA 23
Parties
Appellant: Raymond Banda; Appellant: Patricia Fynn; Respondent: Frank Johannes van der Spuy; Respondent: Alicia Anastasia van der Spuy
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
22 March 2013
Case Number
781/2011
Procedural Posture
Civil Appeal / Appeal From South Gauteng High Court, Johannesburg
Outcome
Appeal upheld with costs. High court order set aside and replaced.
Judges
Lewis, Maya, Cachalia, Erasmus, Swain
Legal Topics
Latent Defect, Voetstoots Clause, Fraudulent Misrepresentation, Actio Quanti Minoris, Damages Calculation
Land and Property Delict Latent Defect Voetstoots Clause Fraudulent Misrepresentation Actio Quanti Minoris Damages Calculation

Case Brief

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Parties

Raymond Banda

Appellant

Patricia Fynn

Appellant

Frank Johannes van der Spuy

Respondent

Alicia Anastasia van der Spuy

Respondent

Procedural Posture

Civil Appeal / Appeal From South Gauteng High Court, Johannesburg

Legal Issues

  1. 1 Did the respondents possess knowledge of latent defects in the roof and fraudulently conceal them from the appellants?
  2. 2 Does fraudulent concealment of latent defects vitiate the protection of a voetstoots clause?
  3. 3 Was the fraudulent misrepresentation regarding the guarantee causally related to the appellants' damages?

Ratio Decidendi

The court found that the respondents possessed knowledge of latent defects in the roof and fraudulently concealed this from the appellants, including misrepresenting the existence of a guarantee for repairs. This conduct vitiated the protection of the voetstoots clause. The fraudulent misrepresentation was causally linked to the appellants' patrimonial loss, which was measured by the cost of repairing the roof. The respondents' lack of honest belief in the adequacy of repairs and their deliberate avoidance of the truth established fraud. The appropriate measure of damages was the reasonable cost of repairing the roof, including rectifying defects of which the respondents were unaware, as...

Court Disposition

Appeal upheld with costs. High court order set aside and replaced.

Orders

  • The defendants are ordered jointly and severally to pay to the plaintiffs the sum of R449 499 together with interest thereon at the rate of 15.5 per cent per annum from 23 September 2011.
  • The defendants are ordered to pay the costs of suit including the qualifying fees of Mr Visagie.