Bentel Abramson & Partners (Pty) Ltd and Another v Sender NO (A5039/06) [2007] ZAGPHC 361 (17 October 2007)

Bentel Abramson & Partners (Pty) Ltd and Another v Sender NO (A5039/06) [2007] ZAGPHC 361 (17 October 2007)

The court found that neither the Architects' Act nor its predecessor statutes expressly prohibit unregistered architects from recovering fees for professional services rendered. The criminal sanction for performing architectural work without registration does not, in itself, render contracts for such services void or unenforceable. The intention of the Legislature, as evidenced by the statutory scheme and the absence of express prohibition, was not to invalidate such contracts. The respondent failed to prove that statutory illegality should bar the appellants' claim. The point in limine was incorrectly upheld by the court below, and the matter should be referred back for determination on...

Citation
[2007] ZAGPHC 361
Parties
Appellant: Bentel Abramson & Partners (Pty) Ltd; Appellant: Patrick Jones and Associates; Respondent: Benjamin Sender NO
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
17 October 2007
Case Number
A5039/06
Procedural Posture
Civil Appeal / Appeal Against Absolution From the Instance Granted at Trial
Outcome
Appeal allowed; order of absolution from the instance set aside; matter referred back to the court below for finalisation on the merits.
Judges
D S S Moshidi, M P Tsoka, P A Meyer
Legal Topics
Architects Registration, Statutory Illegality, Absolution From Instance, Professional Services Contract, Interpretation of Statutes
Commercial and Corporate Civil Procedure Architects Registration Statutory Illegality Absolution From Instance Professional Services Contract Interpretation of Statutes

Case Brief

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Parties

Bentel Abramson & Partners (Pty) Ltd

Appellant

Patrick Jones and Associates

Appellant

Benjamin Sender NO

Respondent

Procedural Posture

Civil Appeal / Appeal Against Absolution From the Instance Granted at Trial

Legal Issues

  1. 1 Whether the court below correctly granted absolution from the instance based on the alleged non-registration of the second appellant as an architect.
  2. 2 Whether statutory provisions prohibit unregistered architects from recovering fees for professional services rendered.
  3. 3 Whether the intention of the Legislature was to render contracts with unregistered architects void and unenforceable.

Ratio Decidendi

The court found that neither the Architects' Act nor its predecessor statutes expressly prohibit unregistered architects from recovering fees for professional services rendered. The criminal sanction for performing architectural work without registration does not, in itself, render contracts for such services void or unenforceable. The intention of the Legislature, as evidenced by the statutory scheme and the absence of express prohibition, was not to invalidate such contracts. The respondent failed to prove that statutory illegality should bar the appellants' claim. The point in limine was incorrectly upheld by the court below, and the matter should be referred back for determination on...

Court Disposition

Appeal allowed; order of absolution from the instance set aside; matter referred back to the court below for finalisation on the merits.

Orders

  • The appeal is allowed with costs, including the costs of senior counsel.
  • The order of the court below is set aside and substituted with: 'The application for absolution from the instance is dismissed with costs.'